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FOOD FAIR STORES v. COMMONWEALTH PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD REVIEW (01/29/74)

decided: January 29, 1974.

FOOD FAIR STORES, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert Dilbeck, Sr., No. B-116574.

COUNSEL

Andrew S. Price, with him Frank E. Hahn, Jr., John F. E. Hippel and Obermayer, Rebmann, Maxwell & Hippel, for appellant.

Sydney Reuben, Assistant Attorney General, for appellee.

Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 11 Pa. Commw. Page 536]

The unemployment compensation claimant in this case, Robert J. Dilbeck, Sr., had been employed by Food Fair Stores, Inc. for more than fifteen years. On December 6, 1971, his work assignment was as a helper on a delivery truck. On that date he and the driver of a Food Fair truck were observed by private security personnel removing merchandise belonging to Food Fair and worth more than $900 from the truck to a private garage at the driver's residence. Both men were immediately confronted and arrested. They were discharged from their employment the following day. Dilbeck was subsequently acquitted of criminal charges. Although Dilbeck was a member of a union of Food Fair employes, neither he nor his union instituted grievance proceedings over his firing.

At hearings before a referee of the Board of Review, Dilbeck admitted his participation in the act of removing his employer's property from its truck to his driver's private garage and explained it as obedience of his superior's, the driver's, orders. The referee upheld the Bureau of Employment Security's denial of unemployment

[ 11 Pa. Commw. Page 537]

    compensation but the Board of Review reversed. Food Fair, Inc. has appealed the Board's action.

The question, of course, is whether Dilbeck's unemployment after his firing was "due to his discharge . . . from work for willful misconduct connected with his work." Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P.L. [1937] 2897, § 402(e), 43 P.S. § 802(e). This Court has adopted the standard definition of wilful misconduct in this kind of case. In Fields v. Unemployment Compensation Board, 7 Pa. Commonwealth Ct. 200, 202, 300 A.2d 310, 311 (1973), Judge Mencer wrote: "As a general principle, the act or course of conduct must be wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of the standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest, or of the employee's duties and obligations to the employer." The salient phrases of the definition for purposes of this case are "deliberate violation of the employer's rules" and "disregard of the standards of behavior which the employer has the right to expect of his employee."

The merchandise here involved was destined for return to the employer's warehouse. Dilbeck's testimony includes his acknowledgment that the warehouse contained a "drop room" to which these goods should have been returned by him and his driver. Hence, the delivery by the driver and Dilbeck of this property to the driver's home was a deliberate violation of a rule of the employer known to Dilbeck.

The Board of Review found excuse for Dilbeck's action in his position of subordination to the driver. While Dilbeck testified ...


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