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decided: March 12, 1981.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Mary Anderson, No. B-175302.


Vincenti A. DeFauce, with him Daniel L. Haller, for petitioner.

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

Judges Rogers, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 57 Pa. Commw. Page 448]

In this unemployment compensation appeal, the claimant*fn1 questions the board's*fn2 affirmance of a referee's decision which denied compensation on the basis of the willful misconduct provision of the Unemployment Compensation Law.*fn3

On March 19, 1979 the employer*fn4 discharged claimant from her duties as a meat wrapper for allegedly shoplifting meat from the employer. On her last day at work, the claimant, during her fifteen-minute break, purchased items from the store, had them bagged and rung up at a cash register, and then took them to her work station in the meat department. A few minutes before the end of claimant's shift, the store manager

[ 57 Pa. Commw. Page 449]

    observed the claimant removing five pre-wrapped priced packages of cube steak from the meat cooler and placing them in the bag along with the items purchased during her break. Claimant then proceeded to the rear of the store to punch her time card at the end of her shift. Although the only exit from the store was through the checkout counters at the front, the manager apprehended the claimant and discharged her for shoplifting immediately after the claimant had punched her time card and before she had approached the checkout counters or the exit.

Although the employer had a rule prohibiting employees from purchasing items during their shift, the record indicates that the rule was not enforced.*fn5 Therefore, we agree with the board's conclusion that claimant's violation of that rule cannot constitute willful misconduct.

However, this court has defined willful misconduct as any conduct which exhibits a disregard of the employer's interest. O'Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 333 A.2d 815 (1975). Moreover, this court has held that one isolated instance of theft is sufficient to constitute willful misconduct. Kostek v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 32, 315 A.2d 308 (1974).

Consequently, the pivotal question here is whether the testimony that claimant placed the packages of

[ 57 Pa. Commw. Page 450]

    meat in the bag containing her earlier purchases, while she went to the rear of the store to punch her time card, constitutes substantial evidence*fn6 that she had concealed the meat packages and intended to exit the store without paying for them.

The board's finding that claimant was discharged for "shoplifting" rests solely upon acceptance of the manager's conclusory statement that the claimant had "concealed" the meat packages in the bag. Although concealment in such circumstances can be determinative,*fn7 our scrutiny of the testimony discloses no substantial evidence of concealment here. Although the board was entitled to believe the manager's testimony that the meat was "put in the bag and the bag was rolled up and it was closed", as against claimant's testimony that the bag was "wide open", the mere use of the bag, acquired with the earlier purchases, to assemble and carry five separate meat packages, while claimant using at least one hand to clock out, is not substantial evidence of concealment or of a settled intention to exit through the checkout counters without paying.

Because the employer's burden of establishing willful misconduct required a substantial quantum of proof that claimant would not pay, and that is lacking, the board's rejection of claimant's declaration that she was going to pay, on credibility grounds, cannot be decisive.

[ 57 Pa. Commw. Page 451]

Paying before clocking out, on company time outside of a break, was not allowed, and the only exit was through the checkout at the front of the store. Hence, the manager aborted the completion of claimant's conduct which would have established the claimant's actual intention and alleviated the need to speculate.

Claimant's conduct apparently generated suspicion on the part of the manager, but suspicion, like the conduct which here prompted it, is not substantial evidence.

Accordingly, we reverse the decision of the board.


And Now, this 12th day of March, 1981, the decision of the Unemployment Compensation Board of Review, Decision No. B-175302 denying benefits to Mary Anderson is hereby reversed, and this case is remanded for computation of benefits.


Reversed and remanded.

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