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NORMAN JAMES v. COMMONWEALTH PENNSYLVANIA (05/26/81)

decided: May 26, 1981.

NORMAN JAMES, 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 Norman James, No. B-167582-B.

COUNSEL

Andrew F. Erba, for petitioner.

Karen Durkin, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Palladino

[ 59 Pa. Commw. Page 231]

Petitioner appeals an order of the Unemployment Compensation Board of Review (Board) which reversed the referee's decision and denied benefits to Petitioner. We reverse the Board's order.

Petitioner was employed by Sears, Roebuck and Co. (Sears) as an electrical helper whose duties included the maintenance of batteries on fork-lift trucks. To facilitate the performance of his duties, Petitioner used his automobile to transport maintenance equipment to the buildings where the batteries were located.

[ 59 Pa. Commw. Page 232]

About to make service rounds one evening, Petitioner discovered that a heavy snowfall had obstructed the movement of his automobile. In order to free his vehicle, Petitioner took a shovel from the Sears stockroom. After Petitioner had freed his automobile, he drove to the building where his maintenance tools were kept. Sears security guards approached Petitioner and had Petitioner sign a statement saying Petitioner had used Sears equipment to free his own car. As a result of this incident, Petitioner was discharged from employment.

Based upon the documentation of the Bureau of Employment Security and in the absence of appearances before the referee, the referee awarded benefits to Petitioner. Following the referee's decision, a hearing was conducted by a second referee acting as hearing officer for the Board. The Board then issued an order denying compensation to Petitioner. Petitioner appealed to this Court which remanded the case to the Board for oral argument. After the argument during which no additional testimony was taken, the Board again denied benefits to Petitioner.

The Board contends that Petitioner was properly discharged for willful misconduct and therefore is not entitled to compensation. 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. ยง 802(e).

In cases of willful misconduct, "the employer has the burden of proving the existence of a rule. . . ." Doyle v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 494, 496, 426 A.2d 756, 757 (1981). In the present case a Sears representative testified that Sears policy is contained in a handbook which states that, "taking part in ...


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