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ANNETTE MCGUILL AND LINDA PATTON v. COMMONWEALTH PENNSYLVANIA (03/23/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 23, 1987.

ANNETTE MCGUILL AND LINDA PATTON, PETITIONERS
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 Linda Patton, No. B-242543 and in case of Annette McGuill, No. B-242544.

COUNSEL

Domenic A. Bellisario, for petitioners.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 105 Pa. Commw. Page 223]

Annette McGuill and Linda Patton (Claimants) petition for review of the two orders of the Unemployment

[ 105 Pa. Commw. Page 224]

Compensation Board of Review (Board)*fn1 denying each of them benefits under Section 402(e) of the Unemployment Compensation Law (Act).*fn2 We affirm.

Claimants were both employed by Hills Department Store (Employer) in Monroeville, Pennsylvania. Patton headed the men's department in the store, while McGuill occupied the same position in the boys' department. On April 3, 1985, Employer's soft lines manager, Wayne Jackson, authorized Patton to mark down in price Michael Jackson-style men's wear. Patton had McGuill help her mark down the men's wear they believed manager Jackson had authorized them to mark down. Patton set aside 19 items from the marked-down merchandise to purchase for her own use; McGuill did likewise with ten items. Jackson told Claimants to stop marking down the men's wear because he saw them marking down items that were not in the Michael Jackson

[ 105 Pa. Commw. Page 225]

    line and which Claimants had not been authorized to mark down.

Claimants ceased the mark-down process at this point. Before leaving work, however, Claimants purchased the marked-down items they had set aside. None of the items purchased at the marked-down price were among those Claimants were authorized to mark down. Both Claimants were terminated on April 6, 1985 for purchasing these items at the reduced price while knowing that they were unauthorized discounts.

Claimants applied for benefits and the Office of Employment Security (OES) determined that Claimants were ineligible for benefits under Section 402(e) of the Act (willful misconduct). The referee and the Board both affirmed the OES' determinations. This appeal followed.

[ 105 Pa. Commw. Page 226]

The only issue before us on appeal is whether there is substantial evidence to support the Board's findings of fact.*fn3 The burden of proving willful misconduct is on the employer. Stauffer v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 569, 455 A.2d 300 (1983). When an employee knowingly purchases or attempts to purchase from an employer items below a price authorized by the employer, such an act constitutes willful misconduct. Kostik v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 32, 315 A.2d 308 (1974). A finding regarding the employee's knowledge can be inferred from the circumstances surrounding the incident, and we have held that circumstantial evidence can support findings of fact. Dunkleberger v. Unemployment Compensation Board of Page 226} Review, 78 Pa. Commonwealth Ct. 384, 467 A.2d 653 (1983). We hold that there is substantial evidence to support the finding that Claimants were discharged for the purchase of items which were the subject of an unauthorized price change.

Claimants here argue that there is evidence in the record to support a finding that the whole incident was the result of a misunderstanding between Claimants and Jackson. While this may be true, credibility matters are for the Board and we must affirm its decision when its findings are supported by substantial evidence, even if we would not have reached the same conclusion based on the record. Perry v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 388, 459 A.2d 1342 (1983).

Accordingly, the orders of the Unemployment Compensation Board of Review are affirmed.

Order

Now, March 23, 1987, the order of the Unemployment Compensation Board of Review, No. B-242543, dated August 12, 1985, denying benefits to Linda Patton is hereby affirmed.

Order

Now, March 23, 1987, the order of the Unemployment Compensation Board of Review, No. B-242544, dated August 12, 1985, denying benefits to Annette McGuill is hereby affirmed.

Disposition

Denials affirmed.


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