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GEORGE H. STEVENS v. COMMONWEALTH PENNSYLVANIA (07/13/79)

decided: July 13, 1979.

GEORGE H. STEVENS, 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 George H. Stevens, No. B-150746.

COUNSEL

Taylor Aspinwall, for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him James Bradley, Assistant Attorney General, and Gerald Gornish, Attorney General, for appellee.

Judges Wilkinson, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 44 Pa. Commw. Page 243]

George H. Stevens, claimant, after being discharged from his position as a stationary engineer with the Osteopathic Hospital, was denied unemployment compensation by the Bureau of Employment Security, by a referee following a hearing and by the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial upon appeal.

Compensation was refused on the basis that the discharge was for "willful misconduct," which, of course, disqualifies a claimant under Section 402(e) of the Unemployment Compensation Law.*fn1

In affirming the denial of compensation, the Board found that claimant was discharged for "misappropriation of hospital property."

A summary of the events of the case is as follows: Claimant had a good work record for three years as a

[ 44 Pa. Commw. Page 244]

    night engineer at the hospital, in charge of boilers, chillers and emergency maintenance, including elevator matters. Although he was given certain hospital keys, by general rule he was not among those authorized to have an elevator by-pass key. Nevertheless, he was frequently called upon to obtain and use such a key, to take the elevator off by-pass when housekeeping workers and others left the elevator in that condition. His foreman gave him an elevator by-pass key.

Apparently because of his complaints that housekeeping personnel were leaving the elevator in by-pass status, he was called in by the Director of Personnel, flanked by outside legal counsel, and told not to complain. Claimant thereupon volunteered to have duplicate elevator by-pass keys made for the Head Housekeeper and for the Director of Personnel, who said that his duplicate should be given to the lawyer.

Claimant therefore had duplicates made of the key given him by his foreman and delivered one duplicate in an envelope to the Head Housekeeper and another in an envelope addressed to the Director of Personnel and the lawyer, by leaving the latter envelope with the Captain of Security.

It is puzzling that the presentation of duplicate keys to hospital superiors, including the head of the security department itself, should be regarded as misappropriation of property.

However, we note that claimant straightforwardly admitted the general rule that he was not authorized to possess a by-pass key.*fn2

[ 44 Pa. Commw. Page 245]

As was pointed out in Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979), the employer has the burden of proving the existence of a rule and the fact of its violation, but an employee, if attempting to justify a violation, has the burden of establishing good cause under the doctrine of ...


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