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EMERY WORLDWIDE v. COMMONWEALTH PENNSYLVANIA (05/02/88)

decided: May 2, 1988.

EMERY WORLDWIDE, 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 Louis C. Sozio, No. B-250959.

COUNSEL

John J. Gallagher, McAllister & Gallagher, P.C., for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Colins and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 115 Pa. Commw. Page 555]

Emery Worldwide (Employer) appeals from the Unemployment Compensation Board of Review's (Board) affirmance of a referee's award of unemployment compensation benefits to Louis Sozio (Claimant).

Claimant was employed by Employer as a truck driver for 24 years, with his last day of work on February 27, 1986. Claimant was discharged for alleged theft from and conspiracy against Employer. Employer contested Claimant's claim for unemployment compensation benefits, contending that Claimant had engaged in willful misconduct and was therefore ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). The Office of Employment Security denied benefits, but the referee reversed, finding that Employer had not met its burden of proof. The Board affirmed. Employer appeals.

Employer presents two issues for review. First, Employer contends the referee erred in refusing to rely on the evidence presented by Employer. Employer introduced two exhibits, namely, a federal indictment against Mr. Herman Kramer and Mr. Kramer's change of plea memorandum*fn1 regarding the indictment, both of which name Claimant as a co-conspirator of Mr. Kramer. Employer also offered the testimony of one of its assistant managers. In the alternative, Employer requests that we order a remand so it may introduce the testimony of Mr. Kramer. Employer asserts a remand is warranted because while Mr. Kramer was unwilling to

[ 115 Pa. Commw. Page 556]

    testify at the hearing before the referee, he is now willing to cooperate with Employer, and has promised to testify in favor of Employer in any subsequent hearing regarding Claimant's unemployment compensation claim. We will address Employer's issues in order.*fn2

We begin by noting that Employer bears the burden of proving willful misconduct. Ulysses v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 340, 524 A.2d 552 (1987). In the present case, Employer sought to meet that burden by introducing the two above-noted exhibits, and reinforcing the exhibits with the testimony of a witness who read from the exhibits. Employer's witness testified that Employer had conducted an independent investigation which resulted in proof that Claimant was working for Employer the day of the theft. There is no indication that the referee failed to take note of this evidence.*fn3 We

[ 115 Pa. Commw. Page 557]

    will assume, without deciding, that all evidence offered by Employer was admissible and is to be ...


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