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THOMAS J. O'KEEFE v. COMMONWEALTH PENNSYLVANIA (03/21/75)

decided: March 21, 1975.

THOMAS J. O'KEEFE, 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 Thomas J. O'Keefe, No. B-121264.

COUNSEL

John D. McBride, with him Panner, Holland and Autenreith, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

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

Author: Kramer

[ 18 Pa. Commw. Page 152]

This is an appeal by Thomas J. O'Keefe (O'Keefe) from an order of the Unemployment Compensation Board of Review (Board), dated April 9, 1974. The Board's order reversed an order of an unemployment compensation

[ 18 Pa. Commw. Page 153]

    referee dated January 29, 1974, which had awarded benefits to O'Keefe.

O'Keefe was employed as an "unpacker" at a branch of Kaufmann's, a large Pittsburgh-based department store. He had held this job from October 1, 1968 until November 20, 1973, the date of his discharge. O'Keefe frankly admits that for several months prior to his discharge he had been in the habit of removing small, stale pastry items from a hamper located near his work station. He ate these items as a supplement to his lunch. These pastries had been offered for sale in the branch store, reduced in price after one day, and thereafter stored in the hamper prior to being shipped to Pittsburgh for some incidental use.*fn1 It is uncontroverted in the record that O'Keefe only took stale pastries which had been removed from the sales area.

On the morning of November 20, 1973, O'Keefe took two pastries out of the hamper. Afterwards, at approximately 11:00 A.M., O'Keefe's immediate supervisor informed him that he was not permitted to take the pastries and that he should not eat any more of them. At approximately 1:30 P.M. on that same date O'Keefe was discharged for eating the stale pastries.

The Board denied benefits on the basis of section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e), which provides, in relevant part, that 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 ...


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