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decided: June 25, 1979.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bradford H. Bullock, No. B-142236.


John O'Rourke, with him John C. Bonner, and McTighe, Mullaney, Weiss, Bonner, Stewart & O'Neill, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

Judges Rogers, DiSalle and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 43 Pa. Commw. Page 529]

This appeal, from an order of the Unemployment Compensation Board of Review holding petitioner-claimant ineligible for unemployment compensation benefits due to a discharge for willful misconduct,*fn1 raises the recurring issue of whether the intentional violation of an employer's direct order or policy is willful misconduct under Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976) and its progeny.

Frumento held that the employee's reason for noncompliance with an employer's rule must be balanced against the reasonableness of the rule; therefore, it is not willful misconduct if the employee refuses to comply with a rule which is unreasonable as applied to him under circumstances in a given case.

In Holomshek v. Unemployment Compensation Board of Review, Judge Wilkinson clarified the application of that standard to a given set of facts:

[T]he burden is on the employer to show willful misconduct. . . . [I]n violation of rules cases, this means that the burden is on the employer to

[ 43 Pa. Commw. Page 530]

    prove the rule and the fact of its violation. However, if the employee comes forward under the doctrine of Frumento, supra, and attempts to justify the violation, the employee then has the burden of establishing good cause.

39 Pa. Commonwealth Ct. 503, 505, 395 A.2d 708, 709 (1979).

Claimant here was employed by Diamond International Corporation as a district manager for the sale of egg cartons. To carry out his duties, he was entitled to the use of a company-owned car. Under company procedures he periodically arranged for the company to purchase a new car for him by personally soliciting bids from auto dealerships, including trade-in allowance for the car he was currently using. The company would then accept one of the bids submitted. The employer here had a policy which specifically limited the accessories allowed on a company car. In particular, the policy prohibited the purchase of air conditioning, even at personal expense, for any car to be used north of Washington, D.C.

The Board's relevant findings of fact are brief:

2. Claimant was discharged for violating company policy regarding his purchase of a company vehicle on May 26, 1976, i.e., of purchasing various accessories at personal expense and contrary to company policy.

3. After submitting a bid on a new automobile, which listed equipment, and which the company accepted, an invoice was forwarded to the employer by the dealer showing that the claimant purchased accessories not listed on the bid originally submitted and accepted; the claimant personally paid for these accessories.

4. Claimant was orally advised by the area sales manager on April 2, 1976 to comply with written corporate policy which specifically prohibited

[ 43 Pa. Commw. Page 531]

    the purchase of various accessories at personal expense.

Under Holomshek, supra, these findings adequately support a conclusion that the employer met its burden of proving that the rule against accessories at personal expense existed, that claimant was aware of the rule, and that claimant deliberately violated that rule.

The Board, in its discussion of the case, further concluded that the policy involved was "reasonable and necessary for the employer's business."

Claimant now contends that, because prior management had always approved such accessories in claimant's previous cars, the employer waived its prerogative to demand strict compliance in this instance.

Applying Holomshek, supra, this contention amounts to an argument that claimant demonstrated good cause for violating the rule.

Although the Board did not expressly conclude whether or not claimant demonstrated good cause for violating the rule, it did resolve conflicting testimony to find that he was advised on April 2, 1976 to begin complying with this rule.*fn2

[ 43 Pa. Commw. Page 532]

Because it is undisputed that he knew of the change in management and that he was advised that new management might begin strictly enforcing that rule, we cannot say that it was unreasonable to expect him to begin complying with the rule, even though violations had been overlooked in the past. Moreover, claimant presented no evidence to indicate that he attempted to get any further clarification of new management's intent. Instead, he simply purchased a new car with the forbidden accessories. Had management, without prior warning, simply begun enforcing a rule on claimant which it had always ignored in the past, the result could be different.

Consequently, because there is no question as to the finding that claimant received oral warning of the change, we need not remand for an express finding on whether he demonstrated good cause for the violation by relying on his past experience. Accepting as true all of his justifications, we cannot say that he has met his burden to show that the rule was unreasonable as applied to him in the circumstances. See Wilkerson v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 624, 399 A.2d 1188 (1979).

The order of the Board is affirmed.

[ 43 Pa. Commw. Page 533]


And Now, this 25th day of June, 1979, the order of the Unemployment Compensation Board of Review, dated March 17, 1978, in No. B-142236 denying benefits, is affirmed.



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