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ANTHONY LOMBARDO v. COMMONWEALTH PENNSYLVANIA (04/14/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 14, 1987.

ANTHONY LOMBARDO, 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 Anthony Lombardo, No. B-241798.

COUNSEL

Charles J. Bufalino, Jr., for petitioner.

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

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

Author: Crumlish

[ 105 Pa. Commw. Page 279]

An unemployment compensation referee's decision granted Anthony Lombardo benefits. The Board of Review reversed. Section 402(e) of the Unemployment Compensation Law (Act).*fn1 Lombardo appeals;*fn2 we reverse.

[ 105 Pa. Commw. Page 280]

Lombardo, a bakery driver/salesman, was discharged for falsifying company records.*fn3 After receiving a customer complaint about Lombardo's service, the employer conducted an investigation and discovered delivery discrepancies.*fn4

The referee concluded that the investigation did not adequately prove that Lombardo was responsible for the shortages.*fn5 The Board, however, disagreed and concluded that Lombardo did not have good cause for violating a work rule.*fn6

Lombardo contends that the record lacks substantial evidence to support the Board's finding that he willfully falsified records. We agree.

The Board found that the employer conducted an investigation by taking inventory before and after Lombardo's deliveries. The employer would subtract the delivered loaves from the total number on the shelf; any difference between the first count and the result of the second procedure would be charged against Lombardo.

[ 105 Pa. Commw. Page 281]

At first blush, these findings appear sufficient to support the conclusion that Lombardo was falsifying records. However, upon a careful examination of the record, the validity of the employer's investigation is seriously questioned. For example: (1) the employer would take the first inventory between forty-five minutes to two hours before Lombardo made his delivery; (2) during the interval between inventory and delivery, the employer would not have a clear view of the entranceways to the customer's storage area; and further (3) the intermingling of the old and fresh bread made it unclear whether the bread was missing from pre-existing inventory or from the most recent delivery.*fn7

Although we have held that circumstantial evidence, if substantial, is sufficient to support a finding of willful misconduct, evidence is substantial only where it so preponderates in favor of the conclusion that it outweighs, in the fact finder's mind, any inconsistent evidence and reasonable inferences drawn therefrom. Wysocki v. Unemployment Compensation Board of Review, 87 Pa. Commonwealth Ct. 260, 487 A.2d 71 (1985).

The only evidence of Lombardo's alleged falsification is the investigation result establishing a shortage. The investigation itself does not positively attribute the shortage to Lombardo's culpability but points equally to the possibility of misconduct by others or a counting error by Lombardo.*fn8 Thus, the results do not preponderate

[ 105 Pa. Commw. Page 282]

    a conclusion that Lombardo failed to deliver the unaccounted for loaves or deliberately falsified the sales slip.

Having carefully reviewed the record, we hold that there is insufficient evidence to support the Board's finding that Lombardo's actions rose to the level of willful misconduct. Accordingly, the Board's order is reversed.

Order

The Unemployment Compensation Board of Review order, No. B-241798 dated July 15, 1985, is reversed.

Disposition

Board reversed.


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