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HENRY PEDERSEN v. COMMONWEALTH PENNSYLVANIA (05/06/83)

decided: May 6, 1983.

HENRY PEDERSEN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Henry Pedersen, No. B-196962.

COUNSEL

Clifford A. Rieders, Murphy, Mussina, Harris & Rieders, for appellant.

Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

John Bonner, Casale & Bonner, for South Williamsport Area School District.

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

Author: Williams

[ 74 Pa. Commw. Page 131]

Henry Pedersen (the claimant) has appealed from the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. The Board denied benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law)*fn1 on the ground that the conduct which led to the claimant's termination -- appropriation of the employer's property without permission -- constitutes "willful misconduct." The claimant asserts that the Board's findings are not supported by the evidence, and that the claimant's action did not rise to the level of willful misconduct. For the reasons which follow, we affirm the decision of the Board.

The claimant was employed for approximately eight years, until November 9, 1979, as a maintenance employee for the South Williamsport Area School District. He was discharged on the basis of reports by another employee that the claimant had made unauthorized use of a School District vehicle; and that he had stolen quantities of butter, machine oil and cement paint belonging to the School District. The employer supported its claim of willful misconduct with the testimony of two witnesses: the assistant school superintendent, who was in charge of maintenance at the time

[ 74 Pa. Commw. Page 132]

    of the alleged thefts; and the claimant's co-worker, Reeser, who allegedly saw the thefts and shared in the stolen goods. The assistant superintendent testified that the claimant was not authorized to take any School District property or to use a School District vehicle for personal purposes. Reeser testified that, in the summer of 1979, he, the claimant, and another co-worker, named McCloskey, went to the Federal Excess Food Program to pick up surplus butter which had been allocated for the School District. Reeser further testified that after the butter was delivered to the School District, there was one case left in the truck, and the three employees, including the claimant, divided the butter among themselves. He also testified that on another occasion he saw the claimant take some oil belonging to the School District, and that the claimant gave some of the oil to him and McCloskey. On yet another occasion, the claimant allegedly participated in dividing up a case of cement paint which belonged to the School District. Finally, Reeser testified that during the summer of 1979 he helped the claimant transport a motorcycle belonging to the claimant's son. The motorcycle was moved during working hours and in a vehicle owned by the School District. Reeser confessed the thefts to a School District official after the claimant allegedly told Reeser that if the thefts were discovered, Reeser would go to jail, but that he (claimant) and McCloskey could make restitution. Reeser was suspended for his involvement in the thefts.

The claimant's testimony is in substantial conflict with the employer's witnesses. Contrary to Reeser, he testified that the butter did not belong to the School District, but was given to him by the person in charge at the Federal Excess Food Program. The claimant testified that he did not steal a can of oil, but only used some of the oil on the locks on his van and returned the can to its storage place in the maintenance tool kit.

[ 74 Pa. Commw. Page 133]

Furthermore, the claimant categorically denied removing any cement paint; rather, he stated that the paint was used to paint School District buildings. With regard to the charge that he transported a motorcycle in a School District vehicle during work hours, he testified that he was on vacation time when the move took place. He did not deny that he used a School District vehicle to transport ...


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