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THOMAS J. MCDERMOTT v. COMMONWEALTH PENNSYLVANIA (04/08/81)

decided: April 8, 1981.

THOMAS J. MCDERMOTT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. THE DAILY CORPORATION, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas J. McDermott, No. B-178117.

COUNSEL

Kenneth S. Siegel, Malis, Tolson & Malis, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Mabel Dettere Sellers, with her Francis J. Tarquini, Jenkins, Tarquini & Jenkins, for intervenor.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Mencer. Judge Wilkinson, Jr., did not participate in the decision in this case.

Author: Mencer

[ 58 Pa. Commw. Page 377]

Thomas J. McDermott (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which denied benefits for willful misconduct pursuant to 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).

Claimant was employed as a truck driver by the Daily Corporation (Daily) for a period of 9 months. On March 12, 1979, claimant did not report to work due to illness and reported his absence to Daily. Claimant continued to be absent through March 15, without reporting his absence. On March 16, claimant did not report for work but arranged with the president of Daily to return to work on Monday, March 19. Claimant, however, failed to report for work on that day or at any time thereafter.

It is useful to examine this case from three perspectives in order to isolate the legal issues involved.

I. Daily maintained in its statement to the Office of Employment Security (OES) and in its testimony before the referee that claimant had abandoned his job and had failed to give notice of his intention to leave work. Daily further asserted that continuing work would have been available for claimant had he returned.

II. Claimant's father, Warren McDermott, was chief executive office of Daily at the time in question, although he has since been discharged. Warren McDermott testified that, when he returned from a trip to Florida on March 16, 1979, he "fired" claimant because he (Warren McDermott) was involved in a dispute with the president of Daily and no longer wanted his son working for that company.

III. Claimant contended in his statement to the OES and in his testimony ...


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