Summary
finding that employee was guilty of willful misconduct when he removed tires from his employer's warehouse, despite the fact that criminal charges were not prosecuted
Summary of this case from Poore v. City of MindenOpinion
Argued December 8, 1978
February 12, 1979.
Unemployment compensation — Wilful misconduct — Removal of employer's property — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Credibility — Substantial evidence — Dismissal of criminal charges.
1. When substantial evidence supports a finding that an employe was discharged after being apprehended removing his employer's property from the employer's warehouse without permission, a denial of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, because of the employe's wilful misconduct will not be disturbed on appeal. [389]
2. In an unemployment compensation case questions of credibility are for the Unemployment Compensation Board of Review, not the reviewing court. [389]
3. Because criminal charges against an employe were dismissed does not preclude a finding by the Unemployment Compensation Board of Review that the employe was guilty of wilful misconduct in the incident which was the basis for the charges. [389]
Argued December 8, 1978, before Judges CRUMLISH, JR., BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 1478 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Edward A. Danko, No. B-146355.
Application to the Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed. Benefits denied by referee. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Simon B. John, with him John John, for petitioner.
Reese F. Couch, Assistant Attorney General, with him Susan Shinkman, Assistant Attorney General, and Gerald Gornish, Attorney General, for respondent.
In this case, Edward A. Danko (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law for willful misconduct. The only question before us is whether or not the evidence supports the Board's finding that the claimant was attempting to remove property from his employer's premises without permission.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
The claimant was observed by a police officer while in the process of removing tires from his employer's warehouse after working hours. The police officer subsequently informed the employer, who thereupon dismissed the claimant. Although criminal charges were filed, a nolle prosequi was later entered. At the hearing before the referee the employer testified as to the reason for the claimant's dismissal and refuted the claimant's contention that he was acting on the order of his superiors. The police officer also testified as to his observations.
The referee and the Board chose to believe the employer, and it is the function of the fact-finder to resolve questions of credibility. Meneely v. Unemployment Compensation Board of Review, 28 Pa. Commw. 613, 369 A.2d 506 (1977). Moreover, there is substantial evidence in the form of the employer's and the police officer's testimony, to support the Board's findings, and they are therefore conclusive. Geesey v. Unemployment Compensation Board of Review, 33 Pa. Commw. 376, 381 A.2d 1343 (1978). Finally, we observed in Food Fair Stores, Inc. v. Unemployment Compensation Board of Review, 11 Pa. Commw. 535, 314 A.2d 528 (1974), that an acquittal on criminal charges is not determinative of the issue of willful misconduct. Similarly, we do not think that the nolle prosequi here precludes a finding by the Board that the claimant's actions constituted willful misconduct.
The order of the Board is affirmed.
ORDER
AND NOW, this 12th day of February, 1979, the order of the Unemployment Compensation Board of Review in the above-captioned case is hereby affirmed.