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BROCKER MFG. AND SUPPLY CO. v. COMMONWEALTH PENNSYLVANIA (02/05/86)

decided: February 5, 1986.

BROCKER MFG. AND SUPPLY CO., INC., 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 Paul L. Eichelberger, No. B-216493.

COUNSEL

Michael E. Bortner, Blakey, Yost, Bupp & Kilgore, for petitioner.

Donna M. Stanek, with her, James K. Bradley, Associate Counsel, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

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

Author: Doyle

[ 94 Pa. Commw. Page 629]

Brocker Manufacturing and Supply Company (Employer) appeals from the decision of the Unemployment Compensation Board of Review (Board) which reversed the decision of the referee and awarded benefits to Paul L. Eichelberger (Claimant).

Claimant worked for Employer as a truck driver until November 11, 1982, when he was discharged for stealing diesel fuel from his company truck. Claimant was denied benefits by the Office of Employment Security, and, after a hearing in which conflicting evidence was presented, the referee upheld that determination, finding that Claimant's misappropriation of diesel fuel constituted willful misconduct under Section

[ 94 Pa. Commw. Page 630402]

(e) of the Unemployment Compensation Law.*fn1 Upon further appeal, the Board reversed without taking additional evidence, finding that Claimant had not misappropriated diesel fuel from his Employer.

Employer brings the present appeal to this Court arguing primarily that the referee's findings were well-supported by the evidence, and should not have been rejected by the Board. Employer cites Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), for the proposition that the Board cannot ignore the referee's findings when they are supported by "overwhelming evidence." The Treon holding was recently distinguished by the Supreme Court in the decision of Peak v. Unemployment Compensation Board of Review, Pa. , 501 A.2d 1383 (1985). In Peak the Supreme Court addressed a similar argument that Treon requires the Board to defer credibility determinations to the referee or explain why it refused to adopt them. The Court rejected this argument, distinguishing the Treon holding:

Treon involved the Board's rejection of a referee's finding based on uncontradicted evidence. Here, the evidence of appellant's misconduct was conflicting. Appellant's more general argument disguises an attack on the settled interpretation of Section 504 of the Act,*fn2 . . . which we have consistently held makes the Board the ultimate finder of fact with the power to substitute its judgment for that of its referees on disputed facts. Without a legislative change in this section of the law, we are not inclined to disturb its settled meaning.

[ 94 Pa. Commw. Page 631]

    allegation of misappropriation of Employer's property.*fn4 In any event, it is clear from the Peak case that the Board is not required to give its reasons for reversing a referee's decision where there has been ...


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