57 Pa. Commw. 447 | Pa. Commw. Ct. | 1981
Opinion by
In this unemployment compensation appeal, the claimant
On March 19,1979 the employer
Although the employer had a rule prohibiting employees from purchasing items during their shift, the record indicates that the rule was not enforced.
However, this court has defined willful misconduct as any conduct which exhibits a disregard of the employer’s interest. O’Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 333 A.2d 815 (1975). Moreover, this court has held that one isolated instance of theft is sufficient to constitute willful misconduct. Kostek v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 32, 315 A.2d 308 (1974).
Consequently, the pivotal question here is whether the testimony that claimant placed the packages of
The board’s finding that claimant was discharged for “shoplifting” rests solely upon acceptance of the manager’s conclusory statement that the claimant had “concealed” the meat packages in the bag. Although concealment in such circumstances can be determinative,
Because the employer’s burden of establishing willful misconduct required a substantial quantum of proof that claimant would not pay, and that is lacking, the board’s rejection of claimant’s declaration that she was going to pay, on credibility grounds, cannot be decisive.
Claimant’s conduct apparently generated suspicion on the part of the manager, but suspicion, like the conduct which here prompted it, is not substantial evidence.
Accordingly, we reverse the decision of the board.
Order,
And Now, this 12th day of March, 1981, the decision of the Unemployment Compensation Board of Review, Decision No. B-175302 denying benefits to Mary Anderson is hereby reversed, and this case is remanded for computation of benefits.
Mary Anderson.
Unemployment Compensation Board of Review.
Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Economy Supermarket.
The manager of the supermarket testified as follows concerning the enforcement of the rule against employees shopping during their shifts:
QL: As a matter of fact at that time that was policy was it not that the employees were to purchase the items that they bought on their breaktime rather than on company time?
ME: It is not policy, it is one of the things we did not enforce, it is not the company policy to do that but it was not enforced let’s put it that way.
Where, as here, the party with the burden of proving willful misconduct prevailed below, our scope of review is limited to whether the record contains substantial evidence to support the finding of willful misconduct. Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 599, 388 A.2d 785 (1978).
As to the criminal offense of retail theft, definitive evidence of concealment can support a presumption of intention to shoplift. See Section 1 of the Crimes Code, Act of December 6, 1972, P.L. 1482, as amended, 18 Pa. C. S. §3929.