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ANTONIO DENARDIS v. COMMONWEALTH PENNSYLVANIA (08/05/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 5, 1983.

ANTONIO DENARDIS, 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 Antonio DeNardis, No. B-199140.

COUNSEL

Lowell T. Williams, for petitioner.

Joel G. Cavicchia, Associate Counsel, with him Richard L. Cole, Chief Counsel, for respondent.

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

Author: Doyle

[ 76 Pa. Commw. Page 213]

Before this Court is an appeal by Antonio DeNardis (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to 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 "willful misconduct" clause).

Claimant was employed by the Lawrence County CETA Office (Employer) as private sector coordinator. On March 3, 1981, the County Commissioners unanimously voted to discharge Claimant for using Employer's stationery and postage meter for the purpose of mailing non-work related literature. Claimant filed for unemployment compensation benefits but they were denied on the grounds that the activity which led to his discharge constituted willful misconduct. On appeal to this Court, Claimant asserts that there is not substantial evidence to support a conclusion that his activities constituted "willful misconduct." He also argues that he was actually fired because of his activities on behalf of his union, AFSCME.

The burden of establishing that an employee was discharged for "willful misconduct" such that will render him ineligible for unemployment compensation is on the employer. Bignell v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 568, 434 A.2d 869 (1981). Whether certain conduct constitutes "willful misconduct" under the Law is a question of law subject to this Court's review.

[ 76 Pa. Commw. Page 214]

    presented, Taylor v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 5, 432 A.2d 642 (1981), this Court is not free to reverse the Board's findings that Claimant's use of Employer's materials was not work related and that his firing was not for union activities. A prior warning that a course of conduct is improper is not necessary to a conclusion of willful misconduct, see Bollinger v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 575, 449 A.2d 868 (1982), and as the misappropriation of Employer's property for personal use can be willful misconduct as a matter of law, even absent the violation of a rule, Harmon v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 320, 444 A.2d 806 (1982), we affirm the Board's denial of benefits.*fn1

Order

Now, August 5, 1983, the decision and order of the Unemployment Compensation Board of Review in the above captioned matter, No. B-199140, dated September 9, 1981, is hereby affirmed.

Disposition

Affirmed.


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