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TOWNSHIP DARBY v. COMMONWEALTH PENNSYLVANIA (05/28/81)

decided: May 28, 1981.

TOWNSHIP OF DARBY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of David Barnes, No. B-179229.

COUNSEL

John E. Kustriss, with him A. Leo Sereni, Sereni & DiLullo, for petitioner.

Francine Ostrovsky, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Macphail

[ 59 Pa. Commw. Page 285]

The Township of Darby (Township) appeals an order of the Unemployment Compensation Board of

[ 59 Pa. Commw. Page 286]

Review (Board) granting unemployment compensation benefits to David Barnes (Barnes). The Board reversed the referee's decision that had found Barnes had been discharged for willful misconduct and, therefore, pursuant to Section 402(e) of the Unemployment Compensation Law (Law)*fn1 was ineligible for benefits.

The facts of this case are uncontested. The Township promoted Barnes to the position of Assistant Superintendent of Highways of that township in June 1978. His new job responsibilities included, inter alia, the transporting of workers back and forth to job locations, hauling trash when necessary, and performing other functions requiring the operation of a motor vehicle. It was essential, therefore, that Barnes have a Pennsylvania driver's license (License). From June 1978 until June 1979, Barnes knowingly drove the Township's vehicles without a License. The Township's Manager first became aware that Barnes was driving without a License in June 1979. The Manager immediately notified Barnes that in order to remain employed by the Township he was to obtain a permit and License by July 16, 1979. Barnes was immediately assigned duties that did not require driving.

Barnes did not apply for a License until July 17, 1979. When he failed to obtain his License by August 10, 1979, the Township suspended him for two weeks. On August 23, 1979, the Township sent Barnes a letter informing him that if he did not produce a License by

[ 59 Pa. Commw. Page 287]

August 31, 1979, his employment would be terminated on that date.

The Bureau of Motor Vehicles, Pennsylvania Department of Transportation (BMV), also sent a letter to Barnes on August 23, 1979 informing him that his application was incomplete. The BMV advised him to secure a MV-180 form (learner's permit) from the State Police Barracks, complete the form, have it notarized, and return it with the appropriate fee. Barnes completed this procedure on August 29, 1979. On ...


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