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MARIE PARLAVECCHIO v. COMMONWEALTH PENNSYLVANIA (03/26/81)

decided: March 26, 1981.

MARIE PARLAVECCHIO, 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 Marie Parlavecchio, No. B-179619.

COUNSEL

Joseph T. Kownacki, for petitioner.

Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the expiration of the term of office of Judge Wilkinson, Jr.

Author: Blatt

[ 58 Pa. Commw. Page 97]

The claimant*fn1 appeals here from an order of the Board*fn2 which affirmed a referee's denial of the unemployment compensation benefits because of willful misconduct which rendered her ineligible under Section 402(e) of the Pennsylvania Unemployment Compensation Law (Act).*fn3

The claimant was employed as a checker and marker in the receiving department of Penn Traffic Company, which had inaugurated a contest in which all store employees were urged to obtain new credit applications for the store. The record indicates that the employees were called together in groups of six or

[ 58 Pa. Commw. Page 98]

    seven to be apprised of the policies of the contest and the procedure to be followed in obtaining applications. They were told that solicitations could be made on the store premises during periods of customer-contacts as well as during breaks or lunch hours. They were also told that telephone solicitations would be permissible, in which event signatures of the applicants were not required, but that special documentation in the way of verification by an outside firm would be undertaken by the company. Employees were to receive one dollar for each application they obtained.

The claimant received a total of $135 for her efforts: one dollar for each of the 110 applications she submitted, plus a $25 bonus. When questioned by the manager and credit manager of the store regarding signatures on the applications she solicited, however, the claimant at first said that all applicants had signed the applications personally. Upon being pressed further, she admitted that she had signed many of them herself, that she had given some to members of her family whom she "supposed" had signed them on behalf of others, and that at least two of the applicants were the children of relatives who had not been contacted by anyone prior to the submission of their applications. After going through all of her applications and sorting out the ones actually signed by the applicants, the claimant, at the direction of the manager and credit manager, who had observed her sorting of the applications, wrote and signed a statement indicating that she had signed the applicant's name on 101 of the applications on the line marked "Customer Signature". She was then dismissed from her employment because of the alleged misconduct.

The burden of proving willful misconduct which would justify dismissal and the denial of benefits is upon the employer, Glasser v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 29,

[ 58 Pa. Commw. Page 99404]

A.2d 768 (1979), and where the employer has prevailed below, our scope of review is limited to determining whether or not the findings of fact are supported by substantial evidence and whether or not an error of law was committed. Where the Board adopted the referee's findings without taking additional evidence, as here, we must review the findings of the referee, and, although the findings of fact must be affirmed if supported by substantial evidence, willful misconduct is a question of law to be resolved by this Court. Pennsylvania Engineering Corp. v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 305, 405 A.2d 1387 (1979). The claimant argues here that whatever she did was not in connection with her work, and it is true that a denial of benefits under Section 402(e) must be based upon a finding that the claimant's discharge was due to willful misconduct in connection with her work. Frazier v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 474, 411 A.2d 580 (1980). It is true that the claimant did not work in her employer's credit department and did not have specialized training in credit application procedures. She did, however, receive instruction, along with all other store employees, on the ...


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