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JAMES MENEELY v. UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA (02/15/77)

decided: February 15, 1977.

JAMES MENEELY, APPELLANT
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James Meneely, No. B-122342-B.

COUNSEL

Michael J. Murphy, for appellant.

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

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

Author: Blatt

[ 28 Pa. Commw. Page 614]

James Meneely (claimant) was employed by Wander Sales (employer) for a period of four years as a helper on a delivery truck. Wander Sales sold and delivered appliances and as an additional service for its customers would remove and dispose of the old appliances for a $10 fee. Its established procedure for removing the old appliances was contained in a set of Work Rules given to each employee.*fn1 On February 14, 1974, the claimant and a driver delivered an appliance to a customer. The customer requested that an old appliance be removed which the claimant and driver did. They made no prior phone call to the employer, no receipt was given to the customer, and the

[ 28 Pa. Commw. Page 615]

$10 which had been collected was not noted on the road report, all being violations of the employer's prescribed procedure. A company officer happened to witness the claimant and driver unloading the old appliance at the employer's place of business that night, and, when his subsequent investigation indicated that the claimant and driver had violated company procedure regarding the removal of old appliances and had failed to turn in the money received for removing the appliance, both the claimant and the driver were discharged.

The claimant applied for benefits under the Unemployment Compensation Law*fn2 on March 3, 1974. The Bureau of Employment Security (Bureau) granted benefits and the employer appealed. After a hearing, the referee reversed the Bureau's decision and denied benefits because of a finding of willful misconduct under Section 402(e),*fn3 43 P.S. ยง 802(e). The claimant then appealed to the Unemployment Compensation Board of Review (Board) which disallowed the appeal. Upon his appeal to this Court, a remand was ordered for the taking of further testimony, and, after a hearing, the Board again affirmed the decision of the referee and denied benefits. This appeal followed.

The scope of review of this Court in an unemployment compensation case is limited to questions of law and, absent fraud, a determination of whether or not

[ 28 Pa. Commw. Page 616]

    the findings of fact are supported by substantial evidence, leaving questions of credibility to the referee and Board. Owen v. Unemployment Compensation Board of Review, 26 Pa. Commonwealth Ct. 278, 363 A.2d 852 (1976). The claimant argues here that there is not substantial evidence in the record to support the Board's finding of willful misconduct.

Where willful misconduct which would preclude the receipt of benefits under the Unemployment Compensation Law is charged, it is the employer's burden to prove that such willful misconduct occurred, Unemployment Compensation Board of Review v. Tumolo, 25 Pa. Commonwealth Ct. 264, 360 A.2d 763 (1976), and we have defined willful misconduct on numerous occasions to be the wanton or willful disregard of the employer's interest, a deliberate violation of rules, a disregard of expected behavior standards, or negligence manifesting culpability, wrongful intent or evil design or showing an intentional and substantial disregard of the employer's ...


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