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PHILADELPHIA COCA-COLA BOTTLING COMPANY v. COMMONWEALTH PENNSYLVANIA (03/29/74)

decided: March 29, 1974.

THE PHILADELPHIA COCA-COLA BOTTLING COMPANY, 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 William F. Dellaratta, No. B-116788.

COUNSEL

Daniel J. McAleer, with him Frank A. Donahue, Jr., for appellant.

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

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 12 Pa. Commw. Page 558]

The Pennsylvania Unemployment Compensation Board of Review (Board), by an order dated April 30, 1973, allowed claimant, William F. Dellaratta, unemployment compensation benefits. The Philadelphia Coca-Cola Bottling Company (Bottling Company), claimant's employer, appealed this order, and we affirm.

The skimpy and incomplete record indicates the following factual situation. The claimant's last day of work was May 17, 1972, as a driver-salesman for the Bottling Company. He had been an employee for 17 years and averaged, at the time of his discharge, $250 per week in salary and commission. The Board found

[ 12 Pa. Commw. Page 559]

    as a fact that "[d]uring his seventeen years of employment, claimant was never warned that his work was unsatisfactory or that he was violating any company policy."

The Bottling Company discharged claimant for alleged "malperformance of his duties." The record discloses that three customer accounts were involved. The first account concerned a 10-cent-per-case overcharge of a beer distributor. The claimant testified that the overcharge was an error on his part, and he refunded the $1.40 overcharge. The other two customer accounts involved a charge of 10 cents per case for insufficient empty bottle returns. The claimant testified that this was an arrangement consented to by the two customers and that he "came out on the short end anyway" because "most of them [empty bottles] went into the waste basket from the Apparel [one of the customers in question]."

The Bureau of Employment Security (Bureau) issued a determination denying benefits to the claimant. This determination was appealed and, after a very brief hearing, a Referee affirmed the Bureau. A further appeal was taken by claimant to the Board which reversed the Referee and awarded claimant benefits.

The Board reasoned that the overcharges incident to the three accounts in question were isolated events during a 17-year work record and did not constitute wilful misconduct that would disqualify claimant from benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). Section 402(e) provides, in part, that an employe shall be ineligible for compensation for any week "[i]n which ...


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