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FRANK ALBATER v. COMMONWEALTH PENNSYLVANIA (12/17/80)

decided: December 17, 1980.

FRANK ALBATER, 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 Frank Albater, No. B-171670.

COUNSEL

Terry L. Fromson, for petitioner.

Steven R. Marcuse, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Mencer

[ 55 Pa. Commw. Page 391]

Frank Albater (petitioner) has appealed from a decision of the Unemployment Compensation Board of Review (Board) which upheld a denial of benefits under Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

The petitioner was employed as a janitor by the Philadelphia Electric Company (employer) from June 23, 1977 to January 26, 1979. His work area was limited to the public elevators and lobbies on the various floors of the employer's 25-story main office building. He had no keys to interior doors.

On January 25, 1979, the petitioner was reported to have been discovered in one of the private offices on the 23d floor, opening or closing a desk drawer. All of the testimony concerning this incident was hearsay, except for the petitioner's admissions that he was in the office and that the desk drawer was open. During the investigation of the incident, the employer discovered that the petitioner had falsified his employment application by stating that he had no criminal

[ 55 Pa. Commw. Page 392]

    record when in fact the petitioner had at least three prior convictions for theft-related offenses.*fn1 The petitioner was given the option of resigning or being fired for falsifying his employment application. He resigned.

The referee found that the petitioner had not voluntarily quit his job but had engaged in willful misconduct under the provisions of Section 402(e) of the Act when he falsified his application, and so benefits were denied. The Board affirmed, without taking additional testimony, and this appeal followed, based on the contention that the finding of willful misconduct was not supported by substantial evidence.

We have held that where an employee was fired for supplying false information on an employment application, the burden was on the employer to show that the false information concerned "matters material to the employment sought for the errant answer to be disqualifying for unemployment benefits." Unemployment Compensation Board of Review v. Dixon, 27 Pa. Commonwealth Ct. 8, 11, 365 A.2d 668, 669 (1976). In Dixon, an assistant machine operator had concealed a prior arrest on an unspecified charge. When his concealment was discovered, he was fired. We held that the employer had not sustained his burden of proof and therefore we reversed a denial of benefits.

In Barnett v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 360, 408 A.2d 195 (1979), an employee consciously concealed a series of theft-related offenses from the Civil Service Commission when he was being considered for a promotion to a supervisory position. After he had been promoted, the deception was ...


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