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GARNETT GORTON v. COMMONWEALTH PENNSYLVANIA (07/14/83)

decided: July 14, 1983.

GARNETT GORTON, 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 Garnett L. Gorton, No. B-197044.

COUNSEL

Barry Lee Smith, for petitioner.

Francine Ostrovsky, Associate Counsel, with her Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 75 Pa. Commw. Page 479]

Before this Court, is an appeal by Garnett Gorton (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) reversing a referee's award of unemployment compensation benefits. The grounds for reversal are that Claimant had engaged in disqualifying "willful misconduct" under Section 402(e) of the Unemployment Compensation Law (Law),*fn1 43 P.S. ยง 802(e).

Claimant was a truck driver for the Engel Van Service (Employer) regularly transporting cargoes of mail between Erie and Pittsburgh. On February 4, 1981, Claimant, located in Erie, made several inquiries to Employer, located in Sharon, regarding whether that night's run had been canceled because of a severe snowstorm in the Erie area. Later, when it was time to make the run, Claimant called Employer and averred that the truck he was to drive would not start. Employer's owner cursed at Claimant who ostensibly became offended and went home. Another driver then made the run in Claimant's place using the same truck which Claimant was to have used. The next day, and

[ 75 Pa. Commw. Page 480]

    several times over the ensuing weeks, Claimant called Employer concerning the availability of work. He was rebuffed on each occasion. Claimant's position was ultimately filled by another driver, leading Claimant to apply for unemployment compensation. Following a hearing to determine his eligibility, a referee granted benefits, finding that Claimant had voluntarily quit his job but that he had effectively rescinded his resignation prior to Employer making any effort to replace him and that he was therefore fired. The Board reversed, holding instead that Claimant was indeed discharged, but that he engaged in disqualifying "willful misconduct" by virtue of his failure to perform his assigned work.

In his appeal to this Court, Claimant argues that the Board's finding that he was involuntarily terminated is not supported by substantial evidence and that the conclusion that he engaged in "willful misconduct" is in error as a matter of law.

We initially note that there is no effective disagreement as to the question of whether Claimant quit or was fired. The Board found that Claimant was fired the day after he walked off the job. Claimant argues in his brief that he quit but then revoked his resignation prior to Employer's taking steps to replace him. In either instance, however, Claimant was fired, the only difference of opinion being as to when and under what circumstances. The issue which we must address therefore is whether there was disqualifying "willful misconduct."

The burden is on the employer to establish that an employee was discharged for "willful misconduct" such that will render him ineligible for unemployment compensation. Bignell v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 568, 434 A.2d 869 (1981). Whether ...


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