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DEFAZIO EXPRESS v. COMMONWEALTH PENNSYLVANIA (10/02/79)

decided: October 2, 1979.

DEFAZIO EXPRESS, 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 Thomas W. Collins, No. B-151538-B.

COUNSEL

David M. Epstein, with him Epstein, O'Neill & Utan, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Assistant Attorney General, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Rogers

[ 46 Pa. Commw. Page 302]

DeFazio Express, Inc. has appealed a decision of the Unemployment Compensation Board of Review that Thomas W. Collins, an employe of DeFazio, was not guilty of willful misconduct and was therefore eligible for benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Collins, a truck driver for DeFazio, was unable to stop his tractor-trailer in time to avoid striking a passenger car which had stopped in front of his vehicle in a "yield" entrance to a major highway. Minor damage was done to the car; none to the truck. Collins received a police citation for driving too fast under the conditions and paid a fine rather than contest the matter. He nevertheless maintained when cited and in discussions with his employer that he was not at fault in the accident and the compensation authorities found that he "performed his assigned tasks to the best of his ability."

The collective bargaining agreement between Collins' union and DeFazio gave the latter power to establish reasonable rules and regulations for the operation of its trucking business. The rules, a copy of which was given to Collins, provided, inter alia, as follows:

[ 46 Pa. Commw. Page 3031]

. ACCIDENTS [Penalty]

     c. Rear end collision Subject to Discharge

The penalty imposed upon Collins by DeFazio was a six week disciplinary suspension, which, after Collins initiated grievance proceedings, was by agreement reduced to a three weeks suspension. Collins applied for unemployment compensation benefits for the period of the suspension.

DeFazio argues that the Board erred in deciding that the suspension was not due to Collins' willful misconduct because Collins was a professional driver and must be deemed to be at fault in any rear end ...


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