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DONALD W. MCLEAN v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (09/14/76)

decided: September 14, 1976.

DONALD W. MCLEAN, APPELLANT
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald W. McLean, No. B-127970.

COUNSEL

Shari F. Shink, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Blatt.

Author: Crumlish

[ 26 Pa. Commw. Page 271]

Donald W. McLean (Claimant) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision modifying the Bureau of Employment Security's determination. The Board's denial was based on a conclusion that Claimant was properly discharged because of wilful misconduct. The Board therefore approved the referee's findings of fact and conclusions of law that Claimant was ineligible pursuant to Section 402(e) instead of Section 401(b)(1).*fn1

Claimant contends that the Board erred in its conclusion that Perlite Manufacturing Company (Employer)

[ 26 Pa. Commw. Page 272]

    did in fact meet its burden in establishing that the actions of Claimant constituted wilful misconduct.

He argues that the action of Employer ordering him to drive a truck in disrepair was unreasonable. We would agree with Claimant, if the facts were as he believed them to be. However, Claimant was discharged because he refused to drive the truck if it was repaired by CNS Service Company. In effect, he was informing Employer to comply with his wishes. Phrased differently, he was substituting his judgment for that of his employer.

The Board, in affirming the referee, found, inter alia :

"2. On March 19, 1975, claimant complained to the employer that the truck he had operated that day was not operating properly.

"3. The employer advised the claimant he would take the truck to a garage for repairs.

"4. Claimant informed the employer that if the truck was taken back to the same garage where it had previously been worked on, he would not drive the truck.

"5. Claimant was discharged because he refused to perform the duties of the job with the employer's ...


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