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ELWOOD WELLER v. COMMONWEALTH PENNSYLVANIA (05/23/80)

decided: May 23, 1980.

ELWOOD WELLER, 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 Elwood E. Weller, No. B-153308-B.

COUNSEL

Peter B. Macky, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Bowman did not participate in the decision in this case. Dissenting Opinion by Judge Blatt.

Author: Williams

[ 51 Pa. Commw. Page 535]

The petitioner, Elwood Weller, appeals from an order of the Unemployment Compensation Board of Review denying him unemployment benefits.*fn1 The Board's order affirmed a determination by the Referee that the petitioner was discharged for "willful misconduct" and was therefore ineligible for benefits under Section 402 (e) of the Unemployment Compensation Law. Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 43 P.S. ยง 802(e). The petitioner asserts that the Board's order was not supported by substantial evidence and was contrary to law.

On October 26, 1977 the petitioner was discharged from his employment at the General Interiors Corporation, of Lewisburg, Pennsylvania. The discharge was predicated on the petitioner's unauthorized taking, for personal use, of a chain saw belonging to his employer, which act was in violation of a promulgated plant rule.

The evidence revealed, and the Board so found, that on Saturday, October 22, 1977, the petitioner

[ 51 Pa. Commw. Page 536]

    took the saw home without permission. The following Monday, the petitioner did not return the saw or at that time inform the employer he had taken the saw. When the local police were called to investigate the missing saw, the petitioner gave them false and misleading statements about it. It was not until October 25, 1977 that the petitioner admitted to his employer that he had taken the saw without permission; and at that time he admitted he had lied to the police about the saw.

The employer asserted that Weller was discharged for stealing the saw. However, the Board, through some process of its own, determined that the employer discharged him for "taking home the chain saw without permission in violation of the employer's rule". This difference in the characterization of the petitioner's taking becomes material, because the employer had two different plant rules providing different sanctions depending on the nature of the taking.

Under the employer's plant rules, if the petitioner had stolen the saw he could have been discharged for the first offense. But if the petitioner had merely removed the employer's property for personal use, without permission, the sanction was a "warning slip" for the first offense. The petitioner now contends that since the Board's finding placed his infraction within the second plant rule, he should not have been discharged for his first offense and should have received no more than a "warning slip". From that proposition, the petitioner argues that the grounds for his discharge, as found by the Board, could not constitute such "willful misconduct" as to deprive him of eligibility for benefits. We are constrained to agree.

This Court has not delineated the extent to which eligibility for unemployment benefits can be regulated by the independent rules and agreements between employer ...


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