74 Pa. Commw. 130 | Pa. Commw. Ct. | 1983
Opinion by
Henry Pedersen (the claimant) has appealed from the Unemployment .Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. The Board denied benefits pursuant to .Section 402(e) of 'the Unemployment Compensation Law (Law)
The claimant was employed for approximately eight years, -until November 9, 1979, as a maintenance employee for the South Williamsport Area School District. He was discharged on the basis of reports by another employee that the claimant had made unauthorized use of a School District vehicle; and that he had stolen quantities of butter, machine oil and cement paint belonging to the -School District. The employer supported its claim of willful misconduct with the testimony of two witnesses: the assistant school superintendent, who was in charge of maintenance at the time
The claimant’s testimony is in substantial conflict with the employer’is witnesses. Contrary to Reeser, he testified that the butter did not belong- to the School District, but was given to him by the person in charge at the Federal Excess Food Program. The claimant testified that he did not steal a can of oil, but only used some of the oil on the locks on his van and returned the can to its storage place in the maintenance tool kit.
On this conflicting evidence, the Board of Review made the following critical findings:
2. About May of 1979, the claimant took a quantity of UGrL cement paint belonging to his employer without his employer’s permission.
3. On or about June 6, 1979, the claimant took a quantity of butter belonging to his employer for his personal use and without his employer’s permission.
4. About July of 1979, the claimant took a quantity of WD40 oil belonging to his employer for his personal use and without his employer’s permission.
5. During the summer of 1979, the claimant, without the permission of his employer, used his employer’s vehicle to transact his personal affairs during hours when he was required to be attending to his employer’s business.
6. The claimant was discharged on November 9, 1979 for taking employer’s property for his personal use and transacting personal business during regular working hours.
Certain well-settled principles govern our disposition of this appeal. First, it is beyond question that theft from an employer may constitute willful misoon
In an unemployment compensation case involving a charge of willful misconduct, the employer must bear the burden of proof. LeGare v. Unemployment Compensation Board of Review, Pa. , 444 A.2d 1151 (1982). "Where the party hearing the burden of proof has prevailed before the Board, our mope of .appellate review is limited to determining whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial record evidence. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). It is well settled that questions of witness
There is no room for argument that repeated misappropriation of an employer’s property, especially by an employee entrusted with supervisory authority, does rise to the level of willful misconduct.
A review of the record leaves no doubt that the Board’s findings are supported by ¡substantial evidence. The employer presented direct, first-hand testimony of the claimant’s wrong doing. The only finding which might possibly lack sufficient evidentiary support is that dealing with the claimant’is theft of butter. The employer’s witness, Reeser, conceded that he did not overhear the conversation by which, according to the claimant, the latter was given the butter subsequently alleged to be stolen. Nor is there evidence of any label or receipt which would clearly identify the butter ias being the property of the employer. Thus, the only positive evidence from'which an inference can possibly be drawn that the butter belonged to the School District is that it was transported from the Federal Excess Food Program along with butter allocated for the School District. If that were the only incident of alleged theft, the employer’s case would
However, in this instance there is direct evidence of three other incidents of theft or appropriation, any one of which would sustain a charge of willful misconduct. Given our scope of appellate review, we must affirm the Board’s order in this case.
Order
And Now, the 6th day of May, 1983, the order of the Unemployment Compensation Board of Review at No. B-196962 is affirmed.
Act of December 5, 1936, Second Ex. Seas., P.L. (1937) 2897, m amended, 43 P.-S. i§802(e).
The daimiant was acting supervisor of his employer’s maintenance crew during the summer of 1979, the period during which most, if not all, of the alleged incidents of theft or appropriation occurred.