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DELUCA v. READER ET AL. (04/03/74)

decided: April 3, 1974.

DELUCA
v.
READER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1971, No. 2937, in case of Mario DeLuca v. C. B. Reader and Motor Freight Express, Inc.

COUNSEL

E. Carl Uehlein, Jr., with him Harley N. Trice, II, Avrum M. Goldberg, Edward N. Stoner, II, and Reed, Smith, Shaw & McClay, and Morgan, Lewis & Bockius, for appellants.

Joseph A. Steedle, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Watkins, P. J.

Author: Watkins

[ 227 Pa. Super. Page 393]

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division,

[ 227 Pa. Super. Page 394]

    in an action of trespass for libel entered on a jury verdict in the amount of $1,200.00 in favor of the plaintiff-appellee, Mario DeLuca, and against the defendants-appellants, C. B. Reader and Motor Freight Express, Inc.

The employee-appellee is a City Driver employed by the appellant to make freight deliveries in less-than-truckload lots in the metropolitan Pittsburgh area. He was so employed since 1956. He was discharged on May 17, 1971, for failure to turn in a collected item of $9.20. The appellant, by letter, charged him with "dishonestly withholding company funds."

The company relies on the trustworthiness of their drivers to report the correct amount of cash collections on the cash collection cards provided for that purpose. A receipt is given to the customer and the carbon copy is turned into the company with the money. Failure to comply with this rule results in the company billing the customers a second time who have already paid the driver and have a receipt of payment. This creates resentment on the part of the customers and embarrassment to the company.

Early in 1971, the company was having an unusual amount of difficulty with its customers as a result of drivers failing to turn in collected funds. The company discharged an employee by the name of Bova for dishonestly withholding company funds. The arbitrators refused to sustain the discharge of Bova but held that he should be suspended for nine weeks without pay for his conduct. As a result of this case, the union and the company by agreement provided for a notice to be posted in a conspicuous place concerning collections. In accordance with the agreement, the following notice was posted:

"To All Teamster Employees

"Effective immediately, all collections are to be turned in at the end of the shift for that day to the

[ 227 Pa. Super. Page 395]

Cashier. In accordance with the decision rendered by Joint Council No. 40 dated April 13, 1971, failure to comply with this decision will result in termination of your employment."

On January 7, 1971, the appellee failed to turn in cash collections made from Best Coffee and Tea Company and in consequence the company sent the appellee a Warning Letter on March 17, 1971, which stated in part:

"Motor Freight Express billed this customer to collect the freight charges due but were advised cash had been paid to you at the time of delivery ...


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