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STEPTON RODRIGQUES v. COMMONWEALTH PENNSYLVANIA (04/08/81)

decided: April 8, 1981.

STEPTON RODRIGQUES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. WARNER & SWASEY, WIEDEMANN DIVISION, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Stepton Rodrigques, No. B-173263-B.

COUNSEL

Eric Segal, with him Brian R. Steiner, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Doreen S. Davis-Rosenfeld, Obermayer, Rebmann, Maxwell & Hippel, for intervenor.

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

Author: Williams

[ 58 Pa. Commw. Page 363]

Stepton Rodrigques (claimant) appeals from an Order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision holding the claimant ineligible for benefits by mandate of

[ 58 Pa. Commw. Page 364]

Section 402(e) of the Unemployment Compensation Law (Act).*fn1

Claimant Rodrigques was employed as a drill press operator for the Warner-Swasey Company from October, 1976 until his dismissal in February, 1979. Claimant's employment was terminated because of his behavior in kicking in the glass of a vending machine after not receiving the product for which he had paid. The vending machine, although not owned by employer Warner-Swasey was located in that company's cafeteria. Furthermore, the company was responsible for the machine's upkeep, safekeeping, and maintenance.

One day after the kicking incident, claimant met with two of the managers of Warner-Swasey. At the meeting, claimant was informed of his employer's knowledge of the incident, and it was suggested that claimant voluntarily resign from his employment or be subject to dismissal. Having refused to resign, claimant was discharged.

In March 1979, claimant applied for unemployment compensation. The Bureau of Employment Security determined that he was ineligible for benefits, on grounds of willful misconduct. The referee affirmed the Bureau's determination, and the Board affirmed the referee's decision. The instant appeal followed.

The sole issue for this Court's determination is whether the claimant's behavior was serious enough to amount to "willful ...


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