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MILDRED M. KOSTIK v. COMMONWEALTH PENNSYLVANIA (02/05/74)

decided: February 5, 1974.

MILDRED M. KOSTIK, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, APPELLEE, AND THOROFARE MARKETS, INC., INTERVENING APPELLEE



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Mildred M. Kostik, No. B-116548.

COUNSEL

Rabe F. Marsh, III, for appellant.

Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.

John G. Wayman, with him John T. Tierney, III, and Reed, Smith, Shaw & McClay, for intervening appellee.

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

Author: Wilkinson

[ 12 Pa. Commw. Page 33]

Claimant-appellant applied for unemployment compensation as a result of being discharged by her employer, appellee, on May 16, 1972. The Bureau of Employment Security made a determination on August 8, 1972, that no definite proof had been offered that the conduct for which claimant-appellant had been discharged could be considered wilful misconduct. On appeal, a hearing was held by the referee and evidence offered by both the claimant-appellant and employer-appellee.

The referee, on December 1, 1972, concluded: "The claimant's action was a breach of duty owed to her employer and was an act so inimical to the employer's best interests that discharge was a natural result. Accordingly, the claimant is disqualified under the provisions of Section 402(e) of the law."*fn1

[ 12 Pa. Commw. Page 34]

On December 8, 1972, an appeal was filed with the Unemployment Compensation Board of Review which, by unanimous decision on April 12, 1973, concluded that the determination of the referee was proper and disallowed the appeal. We must affirm.

There is no substantive dispute on the facts. Claimant-appellant, a 51-year old woman, for almost 15 years had been employed as a meat wrapper by employer-appellee. Her rights in the retirement program would have been vested in about two months. On the last day of her employment, she was weighing and pricing chicken breasts and chicken quarters for a sale that was to take place the next day. Chicken breasts were specially priced for the sale at 79 cents per pound and chicken quarters at 39 cents per pound. At about 3:00 p.m., claimant-appellant was notified that her son had suffered a head injury and was in the hospital. She requested permission to go to the hospital, but it was not granted because two other girls were off work and there was a great deal of work to do. She received a call from her husband that he had gone to the hospital and, as she testified, "so I tried to make the day out."

At about 9:00 p.m. as she was leaving the store, she was apprehended by a member of the security force who checked her packages and found that she had a package of boiled ham, sliced, and priced at 99 cents per pound when the proper price, according to the employer-appellee, should have been $1.19 per pound. At that time, in her written statement, and at the hearing, claimant-appellant insisted that she was entitled to have charged the price of 99 cents because ...


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