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BK FOODS v. COMMONWEALTH PENNSYLVANIA (09/23/88)

decided: September 23, 1988.

BK FOODS, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review, in the case of In Re: Claim of John Irey, No. B-256893.

COUNSEL

Vicki Kuftic Horne, Thomas Schuchert & Associates, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 119 Pa. Commw. Page 633]

BK Foods, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which found that Claimant was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (willful misconduct).*fn1 We affirm.

Claimant was employed by Employer as the manager of a Burger King restaurant in Pittsburgh, Pennsylvania. Employer had a policy that a restaurant manager was responsible for making bank deposits twice a day,

[ 119 Pa. Commw. Page 634]

    although the two deposits were normally made together and this practice was accepted by Employer.

On January 15, 1987, claimant began his shift by taking excess hamburger buns to another of Employer's stores. When he returned to his store, Claimant was unable to make a deposit of that day's and the previous night's funds because he was the only manager present at the store. When an assistant manager arrived on duty, he asked him to count the money, make out the deposit slips, and take the money to the bank. Claimant did this because four members of his six member staff were absent, which meant he was needed to operate the restaurant, and because he needed time to make out work schedules. Although the assistant manager did fill out the deposit slips, he left the two deposit bags in the safe and did not take them to the bank. When the night manager arrived and noticed the two deposit bags in the safe, she hid them in the bottom of the safe.

The following day Claimant had to prepare the payroll. Consequently, he asked a second assistant manager to make the deposits. This assistant was supposed to check for any deposits left in Employer's safe and deposit them, pick up the previous day's deposit slips, and record the deposit slip amounts on "report sheets." The assistant did not notice the hidden deposit bags nor did he inform Claimant that the January 15, 1987 deposit slips were missing.

On January 17, 1987, Employer conducted a payroll audit at which time it was discovered that no deposit had been made on January 15, 1987. An ensuing search of the store uncovered the deposit bags in the safe. Claimant was discharged for failing to make the deposit.

Claimant applied for benefits, but the Office of Employment Security (OES) found him ineligible under Section 402(e). The referee reversed the OES' ...


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