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MACK TRUCKS v. COMMONWEALTH PENNSYLVANIA (09/08/83)

decided: September 8, 1983.

MACK TRUCKS, INC., 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 Edward Vitcov, No. B-202654.

COUNSEL

Wilbur C. Creveling, Jr., for petitioner.

Peter C. Layman, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Williams

[ 77 Pa. Commw. Page 75]

Mack Trucks, Inc. (Employer) appeals from an Unemployment Compensation Board of Review (Board) order sustaining the referee's affirmance of the Office of Employment Security's (OES) award of benefits to a terminated employe (Claimant).

Before his discharge, Claimant had worked, under an annually renewable written employment contract, approximately four years and eight months as a branch account executive for the Employer which is engaged principally in the manufacture and sale of trucks. In mid-June 1981, Claimant was offered a new employment agreement, effective July 1, 1981, which relegated him to a retail sales position and modified his compensation.*fn1 After reviewing the terms of the employment contract, Claimant proposed three addenda to the new agreement which would have required Employer, inter alia, to indemnify Claimant if Claimant was found to be personally liable for Employer anti-trust violations. Claimant's concern arose from Employer-provided information regarding the

[ 77 Pa. Commw. Page 76]

Employer's possible anti-trust problems and the effect such matters, if prosecuted and proven, would have upon the personal liability of Claimant and other employes. Refusing even to discuss the proposed addenda, the Employer discharged Claimant on June 30, 1981. The OES, referee and the Board each determined that Claimant was not ineligible for unemployment benefits under the willful misconduct provision at Section 402(e) of the Unemployment Compensation Law (Law).*fn2

Employer first asserts that the Board erred in applying Section 402(e) rather than Section 402(a) of the Law, 43 P.S. ยง 802(a).*fn3 Employer's urging of the applicability of Section 402(a) is mistaken inasmuch as that provision pertains exclusively to a claimant "who is already unemployed" and who "refuses a suitable job referral or offer without good cause." Hill v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 141, 143, 415 A.2d 711, 713 (1980) (emphasis in original); See also, Tomkus v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 565, 568, 445 A.2d 846, 847 (1982). Here, the Claimant became unemployed after his futile attempt to modify the new contract and subsequent discharge. Claimant was employed when he allegedly refused to accept the new retail sales position under the agreement,*fn4 and was then terminated.

[ 77 Pa. Commw. Page 77]

Employer's argument concerning the applicability of Section ...


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