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SHERMAN B. SMITH v. COMMONWEALTH PENNSYLVANIA (05/05/86)

decided: May 5, 1986.

SHERMAN B. SMITH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Sherman B. Smith, No. B-236066.

COUNSEL

David C. Mason, Miller and Mason, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges Barry and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Judge Blatt.

Author: Palladino

[ 97 Pa. Commw. Page 26]

This is an appeal by Sherman B. Smith (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying Claimant benefits on the ground of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law.*fn1 We affirm.

Claimant was employed by Asplundh Tree Experts (Employer) until June 25, 1984, when he was discharged for the negligent and unauthorized personal use of Employer's vehicle in violation of Employer's rules. Claimant applied for unemployment compensation which was denied by the Office of Employment Security. Claimant appealed and, after a hearing, the referee affirmed the denial. Claimant then appealed to the Board. The Board found that Employer's rules, of which Claimant was aware, provide for possible immediate discharge of an employee who uses company tools or equipment without authorization. The Board further found that, on June 23, 1985, Claimant used Employer's vehicle for his personal use without authorization, was involved in an accident and was charged with reckless driving. The Board concluded that Claimant's conduct was in disregard of the standard of behavior which an employer has a right to expect and, therefore, constituted willful misconduct. The Board affirmed the denial of benefits.

Claimant now appeals to this Court asserting that the Board erred in that: (1) the Board's findings are not supported by substantial evidence; (2) that Employer's rule regarding unauthorized use of Employer's tools and equipment was not uniformly and consistently applied; and (3) that his personal use of Employer's vehicle did

[ 97 Pa. Commw. Page 27]

    not constitute willful misconduct because he had good cause to be driving the vehicle.

Our thorough review of the record reveals that the Board's findings are supported by substantial evidence. Claimant admits that he knew of the rule and the possible consequences of its violation. He also admits that he was returning from a dinner with his family when the accident occurred. Thus, Employer met its burden of proving the existence of the rule and its knowing violation. This constitutes willful misconduct. Elliott v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 107, 474 A.2d 735 (1984).

Claimant relies on the Pennsylvania Supreme Court case of Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867 (1975) for the proposition that violation of an employer's rule does not constitute willful misconduct if the rule is not uniformly enforced. This, however, is not what Woodson held. Woodson held that the Board could not sanction a non-uniform application of company rules which resulted in racial discrimination. This would constitute state action in violation of the equal protection clause of the United States Constitution. We do not have, in the case at bar, any allegation of racial discrimination. Therefore, Woodson is inapposite to the case at bar. As we stated in the case of Bays v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 421, 424, 437 A.2d 72, 73 (1981):

In short, unless the employer's disparate treatment of his employees with respect to discharges for misconduct demonstrates that the action of the discharge complained of is in reality an act of unlawful discrimination, which the denial of unemployment compensation would reinforce, the ...


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