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ROBERT L. NEIMEIC v. COMMONWEALTH PENNSYLVANIA (06/10/81)

decided: June 10, 1981.

ROBERT L. NEIMEIC, 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 Robert L. Neimeic, No. B-181912.

COUNSEL

Kenneth A. Zak, for petitioner.

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

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 59 Pa. Commw. Page 605]

Robert Neimeic (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) reversing a referee's grant of unemployment benefits.

Two hearings were held. At the first hearing the evidence showed that the claimant had been employed for two and one-half years as a welder for General Electric Company and that he had been dismissed from his employment for violating a company rule

[ 59 Pa. Commw. Page 606]

    prohibiting the use or possession of illegal drugs on the employer's premises. A General Electric security guard testified that in the early morning hours of September 26, 1979, he saw the claimant and two companions get into a van parked on company property.

A: -- and [then] the driver lit up -- pulled something out of his lap -- lit it up -- and it flared up -- and looked like a marijuana cigarette at that time -- O.K. Mr. Neimeic put his cigarette into a pot in the back of the van -- shook it to make sure it was out -- set it down -- the driver took a couple of drags passed the -- what appeared to be a marijuana cigarette to Mr. Neimeic, and he took a couple drags and then he passed it back up -- the driver took a couple more drags on it -- at that point he passed it to the female who was sitting on the passenger's side -- she took a couple of drags on it -- that is when I left the car, walked over to the van --

A: O.K. As I was looking into the Van, I could see a plate on the floor -- and on it was more of this substance that he was rolling the cigarette on the cigarette papers --

Q: Well do you mean like a dish --

A: No, like a pot -- ah -- cardboard -- paper plate --

Q: So that when you approached the Van you say the driver was in the process of rolling a cigarette and then what next happened?

A: O.K. He looked up at me -- at that time Mr. Neimeic still had -- he was the last one to have this cigarette that was passed around --

Q: All right -- then what happened?

[ 59 Pa. Commw. Page 607]

A: O.K. -- I asked them to come out of the Van -- and -- ah -- as they came out, you could tell -- see it in the air -- which I've smelled ...


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