Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Benjamin Frazier, No. B-165632.
Peter G. Sheridan, for petitioner.
Elsa Newman-Silverstine, with her David R. Confer, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. President Judge Bowman did not participate in the decision in this case.
[ 49 Pa. Commw. Page 475]
Petitioner (claimant) appeals from the order of the Unemployment Compensation Board of Review (Board) disallowing his appeal from the order of the referee denying unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). We reverse and remand.
Claimant was employed as a book store manager in a mall, with responsibility for the fiscal operation of the store. Upon opening for business on July 14, 1978, claimant inadvertently left a bank bag containing $1,033.66 either on top of his desk, on top of the safe, or in the unlocked safe instead of securing the money bag by locking the safe. Later that morning, a co-worker discovered that the money bag was missing. Claimant telephoned police and filed a police report; the money bag was found later in the mall with $820.34 in cash missing. After declaring that claimant's negligence was in violation of company policy, claimant's employer discharged him. Upon his application for unemployment compensation benefits, the Bureau of Employment Security, now Office of Employment Security, determined that the claimant's inadvertent act of leaving the safe unlocked was in disregard of his
[ 49 Pa. Commw. Page 476]
employer's rules and was therefore willful misconduct under Section 402(e) of the Law.
Claimant appealed, stating that he did not act willfully, and a hearing was held at which the employer testified regarding company regulations on the handling of cash and at which the claimant admitted that he had forgotten to secure the money in the proper manner. No evidence was presented of any prior improper actions by the claimant, and no allegation of claimant's conspiracy in the theft was made by the employer. The referee found that the claimant's employment was terminated as a result of the theft and that he was responsible for the loss through his neglect. Because the referee concluded that such neglect was not in the best interest of the employer, he affirmed the denial of benefits. Claimant's appeal that his honest mistake could not properly be considered willful misconduct was denied by the Board. Claimant now appeals to this Court, arguing that the referee's findings of fact are inconsistent and contradictory to his conclusion of willful misconduct under the Law because nowhere in his findings are claimant's actions characterized as willful, intentional, or deliberate. Claimant further argues that there is no finding that a written rule existed or that claimant acted in disregard of a specific work rule.
The respondent Board avers that the findings of fact regarding claimant's mishandling of funds entrusted to him for safekeeping are supported by the evidence and binding on this Court. Arguing that the claimant was unquestionably aware of his duties with respect to handling store receipts, the Board cites the employer's exhibit at the hearing of a copy of its policy and procedure governing cash receipts and the referee's finding that the claimant was aware of his responsibility to keep funds secure. In concluding that the claimant's conduct constituted negligence manifesting
[ 49 Pa. Commw. Page 477]
culpability, the Board cites two cases involving an employee's negligence while driving his employer's vehicle. Venanzi v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 448, 399 A.2d 805 (1979); Schappe v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 249, 392 A.2d 353 (1978). Both cases involved more than one traffic accident within a ...