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HOUFF TRANSFER v. COMMONWEALTH PENNSYLVANIA (01/31/79)

decided: January 31, 1979.

HOUFF TRANSFER, INC., 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 Robert K. Phelps, Jr., No. B-144070-B.

COUNSEL

William J. Flannery, with him, of counsel, Morgan, Lewis & Bockius, for petitioner.

Reese F. Couch, Assistant Attorney General, with him James Bradley, Assistant Attorney General, Daniel R. Schuckers, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Mencer

[ 40 Pa. Commw. Page 239]

Houff Transfer, Inc. (Houff) appeals an order of the Unemployment Compensation Board of Review (Board) granting benefits to Robert K. Phelps, Jr. (claimant). The Board found that claimant was not discharged because of willful misconduct*fn1 pursuant to

[ 40 Pa. Commw. Page 240]

Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We reverse.

Claimant had worked for Houff as a truck driver for over two years. On December 13, 1976, claimant experienced a very rapid heartbeat while loading a trailer and was sent home. He was instructed to see a physician and to submit a doctor's certificate stating he was physically capable of performing his duties when he reported back to work. Claimant returned to work on December 20, 1976 and presented a certificate from a doctor who had examined him at the Veterans Administration hospital. The certificate was rejected by the claimant's supervisor, Mr. Adderly, because it did not contain the requisite medical information needed to allow claimant to resume work. Claimant attempted to obtain a revised certificate but, because his doctor refused to modify it, claimant resubmitted the same certificate on December 21, 1976. It was again rejected by claimant's supervisor. An argument ensued, whereupon claimant used abusive language and threatened his superior with bodily harm. Despite this, the supervisor tried to accommodate claimant by allowing him to have his doctor call the supervisor and by offering to put him back to work. Claimant then took out a notebook and started writing in it. At the hearing before the referee, his supervisor described the subsequent events as follows:

BY MR. ADDERLY: . . . I said Robert you're wasting entirely too much time on this book, I said I don't know what you're putting in the book I said but do this on your own time. He cursed me again and told me I'm going to sue you with this book he says this book represents what I can do to you and that's when I

[ 40 Pa. Commw. Page 241]

BY THE REFEREE: Is that when you told him he was discharged?

BY MR. ADDERLY: With all the other aggravation and grief the man has caused me it was then I decided I could not tolerate any more and I said ...


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