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GARY L. HORNER v. COMMONWEALTH PENNSYLVANIA (03/24/87)

decided: March 24, 1987.

GARY L. HORNER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT OF COMPENSATION BOARD OF REVIEW, RESPONDENT. LARRY F. MILLER, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. PATRICK J. SMYTH, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. FRANK J. MONACO, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. GREGORY SUTOR, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeals from the Orders of the Unemployment Compensation Board of Review, in cases of In Re: Claim of Frank T. Monaco, No. B-242205; Claim of Larry F. Miller, No. B-242206; Claim of Gary L. Horner, No. B-242207; Claim of Patrick J. Smyth, No. B-242208, and Claim of Gregory Sutor, No. B-242209, dated August 1, 1985.

COUNSEL

J. Allen Roth, for petitioners.

Jonathan Zorach, 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 60]

Gary L. Horner, Larry F. Miller, Frank T. Monaco, Patrick J. Smyth and Gregory Sutor (Claimants) were discharged by their employer, the United Parcel Service (Employer), for falsifying their time records and

[ 105 Pa. Commw. Page 61]

    taking extended breaks. Claimants separately applied for unemployment compensation benefits, and the Office of Employment Security denied each of them benefits on the ground that their discharges were due to willful misconduct. 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. § 802(e).

Claimants' joint appeal was heard in a series of hearings before a referee. The great bulk of the testimony at the hearings had to do with tachograph charts, which Employer asserts show the times that Claimants' trucks were not in operation, i.e., Claimants' break-times. The testimony explained that a tachograph is a mechanism which is attached to all of Employer's trucks. Once a driver is ready to depart, he sets the correct time on the tachograph and starts a mechanism that begins to turn a circular chart. The chart turns constantly as a pen draws a line that shows the speed at which the truck is driven. When the truck is stationary the pen continues to mark the chart as it turns, timing the period during which the truck is immobile.

Employer also produced two witnesses who conducted an area audit or surveillance of Claimants Miller, Horner and Smyth. The witnesses testified that they watched these Claimants, timed their breaks, and that these Claimants extended their break-times beyond the one-hour-and-fifteen-minutes permitted by their contract, and that they did not accurately report their break-times in their logs or time sheets.

The referee affirmed the decision of the OES, finding each of the Claimants ineligible for benefits.*fn1 On

[ 105 Pa. Commw. Page 62]

    appeal, the Board affirmed the referee's decision. The Claimants' cases have been ...


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