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SUN SHIPBUILDING & DRY DOCK CO. v. COMMONWEALTH PENNSYLVANIA (05/12/78)

decided: May 12, 1978.

SUN SHIPBUILDING & DRY DOCK CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Carmen A. Sgro, No. B-136088.

COUNSEL

Andrew J. Forbes, with him Cramp, D'Iorio, McConchie, Forbes & Surrick, for appellant.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

President Judge Bowman and Judges Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers. Judge Mencer dissents.

Author: Rogers

[ 35 Pa. Commw. Page 276]

The Sun Shipbuilding and Dry Dock Company (Sun) has appealed from an order of the Unemployment Compensation Board of Review overturning a referee's decision and awarding compensation benefits to Carmen A. Sgro. The referee had declared Sgro ineligible for benefits for his willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

Sgro was employed by Sun as a machinist's helper from February 19, 1974 until November 19, 1974 when he was discharged for having recorded in answer to a question on his job application that he had not previously been arrested, when in fact he had been arrested on April 12, 1973. The Bureau of Employment Security and the referee concluded that Sgro had by this false answer committed an act of willful misconduct. The Board of Review reversed because it believed that Sgro's negative answer to the question concerning his arrest was not willful misconduct since it was the answer he had been advised to make by the supervisor of his conduct during his participation in the Delaware County Accelerated Rehabilitative Disposition program. The A.R.D. program, if successfully completed, concludes with a dismissal of the criminal charges, and

[ 35 Pa. Commw. Page 277]

Sgro had completed the program and the charges had been dismissed some months before his discharge.

Section 402(e) of the Unemployment Compensation Law provides in pertinent part:

An employe shall be ineligible for compensation for any week --

(e) In which his employment is due to his discharge or temporary suspension from work for willful misconduct ...


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