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LUTHER BYRD v. COMMONWEALTH PENNSYLVANIA (06/19/80)

decided: June 19, 1980.

LUTHER BYRD, 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 Luther Byrd, No. B-167088.

COUNSEL

Marjorie A. Janoski, with her Richard P. Perna, for petitioner.

Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 52 Pa. Commw. Page 241]

Petitioner (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) dismissing his appeal from the order of the referee denying unemployment compensation benefits. We reverse and remand.

Claimant began work as a taxi cab driver on September 7, 1978. On the night of September 8, 1978 claimant picked up a fare and drove without putting

[ 52 Pa. Commw. Page 242]

    down the flag on the meter. According to the employer's regulations, driving "flag high" is impermissible. A driver who makes a partial or complete "flag high" trip is required to call in on the radio at the time, to report it to the person in charge at the garage and to make a written report; claimant testified his radio was not working and he forgot to make the other reports. When claimant next reported for work on September 11, 1978, he was discharged for driving "flag high".

The Bureau of Employment Security (now the Office of Employment Security), the referee, and the Board all denied benefits on the basis that claimant's discharge was due to willful misconduct as defined in 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 have very brief findings of fact and we quote them in full:

1. Claimant was last employed by Yellow Cab Company on September 8, 1978 as a cab driver ...


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