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decided: April 13, 1982.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James H. O'Donnell, No. B-186375.


William D. Moyer, Jr., for petitioner.

Charles Hasson, Associate Counsel, with him Karen Durkin, Associate Counsel, Richard Wagner, Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 66 Pa. Commw. Page 106]

In this unemployment compensation appeal, the claimant*fn1 questions a denial of benefits by the board,*fn2 reversing a referee's decision allowing benefits to claimant. The board's basis for denying compensation was the willful misconduct provision of the Unemployment Compensation Law.*fn3

On March 27, 1980, the claimant, who had been employed by Kiester, McColgan and Son for fifteen years as a plumber, was discharged partly for violating a company rule governing the unloading of company trucks, as follows:

2. There will be no loading or unloading of your tools at your car. Loading and unloading will take place at the shop before 7:45 a.m. and after 4:45 p.m.

Also included as a basis for discharge was the allegation that some of the employer's property transferred

[ 66 Pa. Commw. Page 107]

    by claimant from a company truck to claimant's automobile had been misappropriated.

The board's determination that claimant was guilty of willful misconduct, as to the loading place rule, is based on its Finding of Fact No. 2:

2. Claimant was found loading his car with materials from his truck at the shop in violation of company policy.

Although the referee did not make the same findings as the board, "[t]he board has the ultimate fact-finding authority, and may substitute its findings for those of the referee without a hearing." Anderson v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 28, 30, 423 A.2d 1138, 1139 (1981).

There is no question but that the employer here met its burden*fn4 of proving the existence of the rule, as admitted by the claimant, and claimant has not contested its reasonableness.

Because the board found against claimant, who had the burden of proof on the matter of good cause for the violation,*fn5 our scope of review on that point is to determine whether the board capriciously disregarded competent evidence. Stevens v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 242, 403 A.2d 221 (1979).*fn6

[ 66 Pa. Commw. Page 108]

Claimant's basis for asserting that he had good cause to ignore the rule was that, because he was taking a boy scout group camping for a week and thus leaving the truck unattended at work, he wanted to transfer the tools from the truck to his car for security purposes, just as he had done for one week in each of the preceding thirteen years.

However, this court, limited by our scope of review, cannot say that the board capriciously disregarded evidence in concluding that the claimant failed to establish good cause to justify his disregard of the employer's rule.

The claimant failed to present evidence indicating a necessitous and compelling reason for disobeying the rule,*fn7 and considering the employer's renewed effort to enforce the rule,*fn8 claimant must establish more than a sympathetic excuse.*fn9

Accordingly, the order of the board is affirmed.*fn10

[ 66 Pa. Commw. Page 109]


Now, April 13, 1982, the order of the Unemployment Compensation Board of Review, decision No. B-186375, dated July 30, 1980, is hereby affirmed.



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