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GARRETT E. SAYERS v. COMMONWEALTH PENNSYLVANIA (04/24/84)

decided: April 24, 1984.

GARRETT E. SAYERS, 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 Garrett E. Sayers, No. B-196345.

COUNSEL

Garrett E. Sayers, petitioner, for himself.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 82 Pa. Commw. Page 7]

Garrett E. Sayers (claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) which affirmed a referee's determination that claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), which provides in pertinent part: "[A]n employe shall be ineligible for compensation for any week . . . (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . ." We reverse.

Claimant was employed by the Bureau of Aviation, Department of Transportation, Commonwealth of Pennsylvania (DOT), for almost eighteen years. In his position as an aviation specialist, claimant was recognized as an expert in the area of aviation safety. For a period of time prior to his discharge, claimant had become dissatisfied with various aviation safety

[ 82 Pa. Commw. Page 8]

    conditions such as insufficient maintenance mechanics, lack of instructions or specifications in the operating manuals concerning the Commonwealth's helicopters, and the question whether pilots who flew the Commonwealth planes had taken and passed the physical examinations required by state and federal regulations. Instead of going to his immediate supervisor with these concerns, claimant made a number of complaints to the Inspector General's Office, which began an investigation into these matters. Claimant's supervisor, Harry Fentress, manager of the Flight Service Division of the Bureau of Aviation, had been subordinate to claimant for several months prior to a reorganization. After the Bureau of Aviation's reorganization in early 1980, he became claimant's supervisor.

Testimony at the hearing before the referee indicated that the relationship between claimant and his supervisor had become strained and that, on January 20, 1981, while acting as co-pilot, Mr. Fentress accidentally failed to switch on the pilot's frequency control button and the pilot was cut off from contact with the control tower while he was making a visual approach to the landing strip. Consequently, the pilot failed to hear directions from the tower to change runways. Mr. Fentress, however, was in contact with the tower and told the pilot of the changed instructions. The pilot changed his approach and made a successful landing without a threat to the safety of his plane and passengers. The referee found that: "10. Fentress' actions were not unusual; what he did could have happened to any co-pilot and while it was a violation of the air regulations, under the circumstances it constituted no danger to anyone." Claimant, however, reported the incident to the Inspector General's Office as a safety violation. He was told that it would be investigated.

[ 82 Pa. Commw. Page 9]

Instead of awaiting the outcome of this investigation and others which he had reported previously, on February 5, 1981, claimant called the Governor's Office and stated his belief that all the safety regulations were not being followed by the Commonwealth in its planes, that some of the pilots were unqualified to fly the planes, and that he hoped there would not be a recurrence of the accident of four years before when a Commonwealth plane crashed and Commonwealth officials and others were killed. Claimant spoke to a deputy administrative assistant to the Governor. The assistant gathered from a conversation that there was cause for alarm, as the claimant also told him that he had called the Lieutenant Governor's Office and the Inspector General's Office regarding these matters. The assistant assumed that there might be a problem with a flight planned by the Governor for February 7, 1981, two days later, and that there might be some unknown danger connected with that flight. Consequently, he called the Lieutenant Governor's Office, the Inspector General's Office, and the Department of Transportation, in an effort to learn of any possible danger and to arrange for security precautions to assure a safe flight. Consequently, the plane which the Governor was to use on February 7, 1981, was fueled in Pittsburgh rather than Harrisburg, given an extraordinary inspection, and placed under twenty-four hour security guard. All of these measures constituted additional expense.

The day following claimant's call, his supervisor was called by the Deputy Secretary of Transportation. When Mr. Fentress attempted to question claimant concerning the nature and purpose of claimant's call in order to learn what safety precautions had been taken for the Governor's impending ...


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