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NATIONAL KEYSTONE PRODUCTS v. COMMONWEALTH PENNSYLVANIA (04/13/83)

decided: April 13, 1983.

NATIONAL KEYSTONE PRODUCTS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. MAX WASSERMAN, INTERVENOR



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Max Wasserman, No. B-196599.

COUNSEL

Tom P. Monteverde, Monteverde, Hemphill, Maschmeyer & Obert, for petitioner.

No appearance for respondent.

Joseph P. Grimes, Donsky, Levin, Dashevsky & Nolan, for intervenor.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by Judge MacPhail. President Judge Crumlish, Jr. dissents.

Author: Macphail

[ 73 Pa. Commw. Page 409]

National Keystone Products (Employer) appeals a decision of the Unemployment Compensation Board of Review (Board) granting benefits to Max Waserman (Claimant). We affirm.

Claimant was last employed as a General Manager for Employer, a wholesale supply house dealing primarily with dental industry supplies. Claimant's last day of work was May 29, 1980, at which time he was discharged because Employer believed that Claimant was stealing company merchandise or the payments on sale of company merchandise. The referee,*fn1 reversing the decision of the Office of Employment Security, found Claimant ineligible for benefits on the basis of willful misconduct. Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). The Board, without taking any further testimony, reversed the referee, finding that the Employer failed to show that Claimant had taken merchandise or the payments for the merchandise.

The burden of proving willful misconduct is on Employer. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503,

[ 73 Pa. Commw. Page 410395]

A.2d 708 (1979). Where the party with the burden of proof fails to prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Philadelphia County Board of Assistance v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 451, 454, 440 A.2d 693, 695 (1982). Capricious disregard of evidence has been defined as a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have disregarded in drawing a conclusion. Id.

Employer contends on this appeal that the Board capriciously disregarded uncontradicted testimony and business records which showed that Claimant had stolen merchandise or payments. We cannot agree. While it is true that two witnesses for Employer testified that Claimant admitted to theft, the Claimant in his testimony denied having made any such admission and denied having stolen anything from Employer. The resolution of such a conflict in the testimony is undoubtedly within the Board's province to determine. Miller v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 257, 424 A.2d 609 (1981).*fn2 Regarding the documentary evidence and other uncontradicted ...


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