Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Terry P. Lingenfelter, No. B-167741.
Scott A. Fleischauer, with him Michael B. Magee, Patterson, Evey, Routch, Black, Behrens & Dorezas, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Craig, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
Petitioner appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying unemployment compensation benefits to Petitioner. We reverse the Board's order.
After seven weeks of employment as an assistant manager trainee at a grocery store, Petitioner was put in charge of the store during a holiday weekend. En route to depositing the store sales receipts in a bank, Petitioner was robbed. Subsequently, Petitioner was discharged from employment and applied for unemployment compensation. The Bureau of Employment Security (Bureau) determined that Petitioner was ineligible for benefits because his discharge was for willful misconduct. Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). In affirming the Bureau's determination, the referee found that Petitioner "was well aware of the employer's bookkeeping and cash control procedure in regards to deposits which indicates that not more
than $5,000 in cash may be deposited at any one time on a local bank depository unless police protection is afforded." Without taking additional testimony or making additional findings, the Board affirmed the referee's decision.
Petitioner contests the referee's (and by its affirmance of the referee's decision, the Board's) finding that the Petitioner "was well aware of" his employer's policy requiring police protection for bank deposits exceeding $5,000 in currency.
In willful misconduct cases, "the employer has the burden of proving the existence of a rule. . . ." Stevens v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 242, 245, 403 A.2d 221, 222 (1979). In the present case testimony from Petitioner's employer disclosed that the store's rule regarding cash deposits was contained in a manual to which Petitioner could have obtained access. According to Petitioner's employer, the proper cash deposit procedure, as outlined in the manual, consisted of an employee's making deposits (1) while the store was open; (2) while in the company of another employee, and (3) with police protection for currency deposits exceeding $5,000.
However, to establish willful misconduct, the employer must also prove that the employee "has deliberately violated its rules. . . ." Wirfel v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 347, 349, 406 A.2d 1173, 1175 (1979) (emphasis added); Philadelphia Geriatric Center v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 357, 406 A.2d 1177 (1979). This Court has "stated on several occasions that an employee is only guilty of willful misconduct when he is, or should be, under the circumstances, conscious that his actions are inimical to the interests of his employer." Curtis v. Unemployment Compensation Page 55} Board of Review, 32 Pa. Commonwealth Ct. 462, 467, 379 A.2d 1069, 1071 (1977) (emphasis added) (citations omitted). Accordingly, this Court has held that an employee may be discharged for willful misconduct where (1) the employee has been warned to comply with his employer's rule and has failed to do so;*fn1 (2) the employer has ...