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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. ATLANTIC RICHFIELD COMPANY (12/18/75)

decided: December 18, 1975.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
ATLANTIC RICHFIELD COMPANY, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert Nunan, No. B-123892.

COUNSEL

James Dinan, for appellant.

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

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

Author: Kramer

[ 22 Pa. Commw. Page 512]

This is an appeal by Atlantic Richfield Company (ARCO) from a decision of the Unemployment Compensation Board of Review which affirmed a referee's allowance of benefits to Robert Nunan. We conclude that the Board capriciously disregarded competent evidence, and reverse.

Nunan was employed by ARCO as a truck driver from November 20, 1951 to February 8, 1973. His duties included the delivery of petroleum products to service stations, garages, and other commercial users. Nunan's truck was loaded by other ARCO employes, and the door was sealed after loading. Until he departed on his daily run, Nunan should have had no knowledge of the truck's contents or the delivery stops. In late 1972, ARCO began an investigation, using company security personnel, into

[ 22 Pa. Commw. Page 513]

    alleged product thefts at the Belmont Terminal where Nunan was employed. As a result of this investigation, three loaders and four drivers, including Nunan, were discharged.

Nunan applied for benefits on March 13, 1975, but the Bureau of Employment Security decided that he was ineligible because he was discharged for willful misconduct.*fn1 Nunan appealed and, after a hearing, a referee reversed the Bureau's determination. ARCO then appealed, and following a remand for additional testimony, the Board affirmed the referee and adopted his findings and conclusions. ARCO argues that the Board erred in holding that no competent evidence had been introduced to support a finding that Nunan stole anything.

ARCO had the burden of proving willful misconduct. Coulter v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 462, 332 A.2d 876 (1975). Since the Board found against ARCO, our scope of review is to determine whether the Board*fn2 capriciously disregarded competent evidence. Lebanon County Board of Assistance v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 558, 332 A.2d 888 (1975). Capricious disregard is defined as a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result. Aluminum Company of America v. Theis, 11 Pa. Commonwealth Ct. 587, 314 A.2d 893 (1974).

The referee erred by holding that there is no competent evidence in the record to support a finding that Nunan was guilty of theft. ARCO presented extensive testimony ...


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