Palladino v. Unemployment Compensation Board of Review , 2013 Pa. Commw. LEXIS 534 ( 2013 )

DISSENTING OPINION BY

Judge LEADBETTER.

I must respectfully dissent. In addition to the Code of Ethics which required the avoidance of improprieties that would reflect poorly on the City, Claimant was twice warned that driving under the influence was unacceptable and would be “career ending.” In essence, the instruction became both a work rule and an explicit directive, which Claimant knowingly disobeyed by committing not only criminal conduct, but the very criminal conduct he had been ordered to avoid. Further, the work rule and the directive were reasonable and reasonably related to his work, not only because his arrest would likely be publicized and reflect poorly on the City, but because it is important that a supervisor maintain the respect of those he is expected to supervise. Since Claimant violated a work rule and a direct order of Employer, I believe the Board properly applied Section 402(e) of the Unemployment Compensation Law¹ and found willful misconduct supporting the denial of benefits.

1 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). In my view the use of Section 3 of the Law to deny benefits for "non-work related misconduct” is a flawed paradigm. Section 3 is nothing more than a statement of the purposes of the act as a whole. I do not believe it is appropriate to rely on such a generalized expression of the Law's purpose to deny benefits. Moreover, Section 402(e) can easily be utilized to analyze the cases in which we have looked to Section 3, so the artificial distinction we have drawn between "work related conduct” and “non-work related conduct which affects the claimant’s job duties” is unnecessary, ill-advised and confusing. However, I recognize that the distinction is a longstanding and well established doctrine binding on this court. See Jones v. Unemployment Comp. Bd. of Review, 513 Pa. 45, 518 A.2d 1150 (1986).