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WILLIAM BEHE v. COMMONWEALTH PENNSYLVANIA (11/25/83)

decided: November 25, 1983.

WILLIAM BEHE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. PENNSYLVANIA AIRLINES, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of William Behe, No. B-203262.

COUNSEL

Gretchen M. Bath, for petitioner.

Michael D. Alsher, with him Richard F. Faux, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Michael Q. Davis, Campbell, Spitzer, Davis & Turgeon, for intervenor.

Judges MacPhail, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 78 Pa. Commw. Page 525]

This is an appeal by William Behe (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a decision of a referee denying Claimant benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. 802(e).

Claimant was employed by Pennsylvania Airlines (Employer) as a commercial airline pilot. He was discharged for refusing to take a flight on his scheduled day off and refusing the Employer's demand that he travel from Williamsport to Middletown to submit to a physical examination. On application for unemployment compensation benefits following his discharge, Claimant was found ineligible by the Office of Employment Security (OES). Claimant filed a timely appeal and after a hearing, a referee affirmed the OES determination that Claimant had been discharged for willful misconduct and was therefore ineligible under Section 402(e). On appeal to the Board, the decision of the referee was affirmed. Appeal to this Court followed.

We have often held that an employee's refusal to comply with a reasonable request of his employer constitutes willful misconduct. Devine v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 318, 429 A.2d 1243 (1981); Ritchie v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 87,

[ 78 Pa. Commw. Page 526380]

A.2d 519 (1977); see also Horn v. Unemployment Compensation Board of Review, 26 Pa. Commonwealth Ct. 566, 364 A.2d 991 (1976). Whether the employee's refusal constitutes willful misconduct, however, depends upon the reasonableness of the request and the reasonableness of the refusal. Devine; Semon v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 501, 417 A.2d 1343 (1980). The reasonableness of both the request and the refusal must be evaluated in light of all the circumstances. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976); Devine. Although an employee attempting to justify alleged misconduct by showing good cause bears the burden of proof, Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979), we must, in the first instance, determine whether the Employer's request was reasonable. Frumento; Devine.

In the case at bar, the record is clear that when first contacted about taking the flight on his day off, the Claimant refused, citing personal plans for that day. Later, when contacted again, Claimant reiterated his unwillingness to take the flight and indicated that he was not feeling well and would not be able to take the flight. Both the flight coordinator and the Vice President of Flight Operations testified that Claimant's allegations of illness were suspect. The vice president also testified that he gave Claimant only two options: take the flight or travel from Claimant's home in Williamsport, Pennsylvania to Middletown, Pennsylvania to be taken to a hospital by the vice president. Claimant ...


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