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JOSEPH BALASCHAK v. COMMONWEALTH PENNSYLVANIA (12/19/78)

decided: December 19, 1978.

JOSEPH BALASCHAK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph Balaschak, No. B-138658-B.

COUNSEL

John Stember, for petitioner.

Reese F. Couch, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 39 Pa. Commw. Page 314]

Joseph Balaschak (claimant) appeals a denial of benefits by the Unemployment Compensation Board of Review (Board). The Board found, pursuant to Section 402(e) of the Unemployment Compensation

[ 39 Pa. Commw. Page 315]

Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), that claimant was discharged because of willful misconduct.*fn1 We reverse.

Claimant was employed by Pittsburgh Die and Casting Company for over three years prior to his discharge. In May of 1976, the claimant's steel toed safety shoes, which he was required to wear by company rule, were destroyed in an industrial accident. Claimant purchased ordinary work shoes with the intention of having a steel toe inserted. Claimant's supervisor discovered he was not wearing proper shoes and warned him to either obtain safety shoes or be discharged. The next working day claimant wore an old pair of safety shoes that he had at home but which were small for his feet.

On July 1, 1976, claimant, to rest his feet while at lunch, took off his ill-fitting safety shoes in the plant locker room and put on his nonsafety shoes. He then walked to the lunch room. On the way back to his locker, claimant's supervisor again observed claimant without safety shoes. He stopped claimant, intending to suspend him for two weeks without pay. The supervisor, however, discharged claimant after claimant stated that the supervisor was not wearing safety shoes and should also be required to do so.

The Bureau of Unemployment Security denied claimant's application for benefits under Section 402(e) of the Act and the referee affirmed. The Board affirmed and this appeal followed.

[ 39 Pa. Commw. Page 316]

The claimant contends that the following findings are not supported by ...


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