Samuel E. Grant, Oil City, for appellant.
William L. Hammond, Sp. Deputy Atty. Gen., Charles J. Margiotti, Atty. Gen., William J. Kenney, Jacob M. Murdock, Rose, Eichenauer and Rose, Pittsburgh, for Joy Manufacturing Co., intervenor appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 169 Pa. Super. Page 369]
This is an appeal from an order of the Unemployment Compensation Board of Review. Glenni S. Wilsey, claimant, was employed by the Joy Manufacturing Company of Franklin, Pa., as a drill press operator until his separation from that employment April 25, 1949. The following day he registered for work and filed application for unemployment compensation. The Bureau denied the claim but was reversed by the referee.
[ 169 Pa. Super. Page 370]
The Board reversed the referee and disallowed benefits on the ground that claimant's unemployment was the result of his 'willful misconduct' within the meaning of § 402(e) of the Unemployment Compensation Law. That section, as amended May 29, 1945, P.L. 1145, 43 P.S. § 802, provides in part: 'An 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; * * *.'
The circumstances surrounding claimant's loss of employment with the Joy Manufacturing Company are recited in the Board's second and third findings of fact, as follows: '2. During the course of his employment with the Joy Manufacturing Company, the claimant constructed for himself, on the employer's premises, a tool box from pieces of scrap metal. In some instances, he asked permission to use the metal but in most instances he did not. The tool box was eventually completed and permission finally given to remove it from the company's premises. On or about April 25, 1949, claimant was apprehended leaving the side door of the plant having in his possession a piece of sheet steel having surface measurements of 7D' A 24D' and being 1/16D' thick. No permission for the removal of such piece of steel had been given. When apprehended the claimant stated that he was leaving by the side door in order to avoid being observed by the State Police; that he was driving his automobile during a period of suspension and was afraid the State Police might possibly be waiting for him at the main entrance. He further stated that he intended to use the piece of sheet steel in the plant, but was taking it to his car for safe keeping inasmuch as there was no place to leave it in the plant. Upon being apprehended with the sheet steel in his possession claimant was given the choice of resigning or being discharged on the basis of theft. Claimant
[ 169 Pa. Super. Page 371]
elected to submit his resignation. 3. Claimant removed the metal from the employer's plant knowing that he had no permission or authority to do so.'
The Board also properly stated in its decision that, 'Although he submitted his resignation, it is apparent that termination of his employment resulted from the action of the employer and that the opportunity for a choice between resignation and dismissal was merely in the interest of avoiding the stigma of a discharge. ...