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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. JOSEPH V. FILIPS (04/24/75)

decided: April 24, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA, APPELLEE, AND HARRISON MUSIC & VENDING CO., INTERVENING APPELLEE,
v.
JOSEPH V. FILIPS, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph V. Filips, No. B-122337.

COUNSEL

Richard K. Brandt, for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

John L. Friedman, for intervening appellee.

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

Author: Kramer

[ 18 Pa. Commw. Page 479]

This is an appeal by Joseph V. Filips (Filips) from an order of the Unemployment Compensation Board of Review (Board), dated July 9, 1974, which affirmed a referee's decision denying benefits to Filips.

Filips was employed by the Harrison Music & Vending Company (employer) in McKees Rocks, Pennsylvania, for approximately 26 months, until he was discharged on January 22, 1974. Filips' duties consisted of driving a truck along a specified route in order to collect money from vending machines and to refill the machines. Filips would fill one sack with the money from each vending machine and deposit the sack in a "drop-in-safe" (similar to a mail box) located in the back of his truck. Filips' duties, of course, required him to be away from his truck for substantial periods of time. Filips was supposed to keep both his truck and his safe locked at all times during his route. On January 17, 1974, Filips returned from his route, opened the safe, and discovered that several bags of money were missing. Filips immediately informed his supervisor of the missing money. The supervisor immediately investigated the situation and determined that

[ 18 Pa. Commw. Page 480]

$528.60 was missing, but that there were no signs of forcible entry on the truck or the safe. Filips could offer no explanation for the missing money other than to state his belief that he had been "set up." On the following day, January 18, 1974, Filips was told by his supervisor that he had been negligent and that he would have to make restitution. Filips consulted with an attorney who apparently advised him that he could not be forced to make restitution. On January 22, 1974, Filips informed his supervisor that he had seen an attorney, that he would not make restitution, and that he wanted a full investigation of the incident. According to Filips, his supervisor then stated:

"I thought you were smarter than that. Your services in this company are no longer required."

On February 17, 1974, Filips filed an application for unemployment compensation benefits. On March 11, 1974, the Bureau of Employment Security (Bureau) denied benefits after finding that Filips was discharged for willful misconduct. Filips appealed from the Bureau's determination and a hearing was held before a referee on April 17, 1974. In a decision dated April 23, 1974, the referee found that Filips was discharged because he was unable to give a satisfactory account for the missing funds and because he refused to make restitution. The referee concluded that Filips' "failure to give a satisfactory explanation" was "inimical to the employer's best interests," that said failure to satisfactorily explain constituted willful misconduct, and that, therefore, Filips was ineligible for benefits. Filips appealed to the Board, which, in an order dated July 9, 1974, affirmed the referee's decision.

In his appeal to this Court, Filips contends that the referee's findings of fact are not legally sufficient to support his conclusion of willful misconduct within the meaning of that term in section 402(e) of the ...


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