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REBECCA A. FLOYD v. COMMONWEALTH PENNSYLVANIA (02/05/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 5, 1986.

REBECCA A. FLOYD, 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 Rebecca A. Floyd, No. B-226418.

COUNSEL

Stephen K. Portko, Hoffmeyer & Semmelman, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 94 Pa. Commw. Page 625]

Rebecca A. Floyd petitions for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits on grounds of willful misconduct.*fn1

[ 94 Pa. Commw. Page 626]

The referee's findings of fact,*fn2 adopted by the Board, are as follows:

1. Claimant was last employed by Rutter's Farm Store as a clerk at a last pay rate of $3.45 per hour. She started her employment in October, 1982, and her last day of work was August 26, 1983.

2. The claimant was discharged by the employer because she violated a company rule regarding ringing up transactions.

3. On August 8, 1983, the employer held a store meeting with the claimant and all employees where the severe problems in the store regarding cash and inventory shortages were discussed.

4. The employer emphasized the importance of completing all transactions and warned the employees that they would be discharged if transactions were not completed.

5. The claimant has a $400 transaction in May which had not been completed and at that time, the employer counseled her on the importance of completing all transactions.

[ 94 Pa. Commw. Page 6276]

. On claimant's last shift of work, she had a $300 transaction which she did not complete.

7. As a result, claimant was discharged.

The petitioner contends that the Board erred legally in reaching a conclusion of willful misconduct*fn3 and argues that her failures to adhere to the company rule were due to negligence such as cannot be held to be willful misconduct, and, in the alternative, that her rule violations, if not negligent, were with good cause requiring specific findings thereon. The Board responds that her negligent conduct does meet the test of willful misconduct set forth in Schappe v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 249, 392 A.2d 353 (1978) (two accidents by a truck driver within thirty days of each other, resulting in losses to the employer of $500 and $700 and which were attributable to the driver's negligence demonstrated his lack of care for the employer's equipment and supported the legal conclusion of willful misconduct). The Board submits further that, inasmuch as the type of conduct involved here is negligence, it was not required to make separate findings of fact on good cause, citing Fortna v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 135, 472 A.2d 1197 (1984) (examination of reasonableness of employer's behavior may be encompassed in Board's analysis of whether or not the conduct was negligent).

[ 94 Pa. Commw. Page 628]

Unfortunately, while we agree with the Board that, if the noncompliance charged was due to negligence, findings on good cause would not have been necessary under Fortna, we are unable to resolve the legal questions presented here. As can readily be seen in the above-listed findings, the referee made no direct or indirect finding as to whether or not noncompliance with her company's rule was due to the petitioner's negligence, and if not, as to whether or not she had good cause for her actions, despite the presence of evidence in the record from which, if accepted as credible, such determinations could have been made. In appellate review, we are unable to fill this factual void and must consequently remand so that the Board may cure these deficiencies. Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975).

Accordingly, we will remand this matter to the Board so that it may make the necessary findings of fact as to whether or not Floyd's noncompliance was negligent and, if not, as to whether or not she had good cause for her noncompliance.

Order

And Now, this 5th day of February, 1986, the order of the Unemployment Compensation Board of Review, Decision No. B-226418, is vacated and this matter is remanded to the Board for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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