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MARY E. HOLOMSHEK v. COMMONWEALTH PENNSYLVANIA (01/03/79)

decided: January 3, 1979.

MARY E. HOLOMSHEK, 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 Mary E. Holomshek, No. B-146049.

COUNSEL

James J. Conte, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

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

Author: Wilkinson

[ 39 Pa. Commw. Page 504]

In the case before us we are confronted again with the issue of whether the deliberate violation of an employer's rule, which rule is well known to the employee, constitutes willful misconduct. As stated by Justice Nix in Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976) this will depend on whether the employer's rule is reasonable and, if so, whether the employee's conduct in violating the rule was motivated by good cause. This Court has recently decided a case clearly raising this issue in Kindrew v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 9, 388 A.2d 801 (1978). There an employee deliberately violated the employer's order that she was to report to work. If she did not report to work, thus violating the order, because she was ill, she had good cause. Supported by an opinion by Judge Rogers, the

[ 39 Pa. Commw. Page 505]

    case was remanded for a finding as to whether she was ill.

In the instant case the claimant was working as a cashier. A number of customers were in line to pay for purchases. A customer who was not in line "pushed" in front of the others, exhibited a purchase costing $2.12, put down the $2.12 and immediately left. In violation of a rule, well known to claimant, she did not ring up the sale and did not offer the customer a receipt.

Claimant testified she left the $2.12 on the register and later put it in the drawer without ringing it up. She attempted to justify not offering a receipt to the customer on the basis that she was busy with another customer.

The purchaser of the $2.12 item was in fact a "checker." She reported the incident to the management. After 13 other transactions had been recorded on the cash register tape, the claimant was asked to report to the management and her cash register examined. There was no $2.12 item on the tape and the register was $4.00 short.*fn1 Claimant was discharged as a result of this incident.

It has been stated repeatedly by this Court, and accepted by both parties, that the burden is on the employer to show willful misconduct. What has not been made clear heretofore is that in violation of rules cases, this means that the burden is on the employer to prove the rule and the fact of its violation. However, if the employee comes forward under the doctrine of Frumento, supra, and attempts to justify the violation, the employee then has the ...


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