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CHARLES C. LOWRY v. COMMONWEALTH PENNSYLVANIA (05/06/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 6, 1983.

CHARLES C. LOWRY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. HALL'S MOTOR TRANSIT COMPANY, INTERVENOR

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Charles C. Lowry, No. B-190758.

COUNSEL

Paul D. Boas, Berlin, Boas & Isaacson, for petitioner.

No appearance for respondent.

Francis M. Milone, with him Kenneth D. Kleinman, Morgan, Lewis & Bockius, for intervenor.

Judges Blatt, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 74 Pa. Commw. Page 145]

Charles Lowry (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of compensation because of willful misconduct. Section 402(e) of the Unemployment Compensation Law.*fn1

The claimant, who had been employed for over nine years as a truck driver by Hall's Motor Transit Company (Hall's), was discharged on December 7, 1979 for his failure to accept a "call to work." In an effort to provide fast and reliable service in a highly competitive industry, Hall's requires an "on call" employee to be available to accept a telephone call to work on a 24 hour, seven days per week basis.*fn2

Based upon the claimant's own testimony, the referee found that he was aware of the work rule which required being "on call", but that, on 70 occasions during a three-month period, he was not available to accept a call to work.*fn3 The referee concluded that these

[ 74 Pa. Commw. Page 146]

    failures to respond constituted willful misconduct and rendered the claimant ineligible for benefits.

The claimant contends here, as he did before the referee and the Board, that his conduct was not "willful misconduct" inasmuch as he had good cause for his failure to respond.*fn4 And, while the burden is on the employer to prove the rule and the fact of its violation, the burden of going forward with the evidence shifts to the employee, if he attempts to justify his conduct, to establish that he had good cause for the violation.*fn5 Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979).

A careful review of the record here indicates that, while the claimant has attempted to establish good

[ 74 Pa. Commw. Page 147]

    cause for his conduct, the referee has failed to make any finding on this issue. And, as we stated in Holomshek, "in the unusual circumstances of rule violation, we must require a separate finding on the issue of good cause."*fn6 Id. at 507, 395 A.2d at 710.

We will therefore remand this case for a finding on this issue.

Order

And Now, this 6th day of May, 1983, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed and the record is remanded to the Board of Review for a finding and opinion consistent with the opinion herein. Jurisdiction relinquished.

Disposition

Reversed and remanded.


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