Opinion
Argued April 8, 1981
June 5, 1981.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Removing gasoline of employer.
1. An employe discharged for removing gasoline from his employer's pump without authorization in disregard of expected behavior standards is properly found to be guilty of wilful misconduct and ineligible for benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, when discharged as a result of such conduct. [519]
Argued April 8, 1981, before President Judge CRUMLISH and Judges BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2488 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Joseph Feeko, No. B-169821-C.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James S. Palermo, for petitioner.
William Kennedy, Assistant Attorney General, with him Elsa D. Newman-Silverstine, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Attorney General, for respondent.
The Unemployment Compensation Board of Review denied Joseph Feeko benefits on the basis of willful misconduct connected with his work. We affirm.
Section 402(e) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (e).
The referee made the following findings of fact:
1. The claimant was last employed as a driller helper by Beltrami Enterprises for approximately four years at a final hourly rate of $5.47, and his last day of work was November 10, 1978.
2. Claimant was discharged on his last day of work for stealing gasoline for use in his own automobile.
3. On November 10, 1978, at approximately 10 a.m., the claimant used a company gas pump for the purpose of filling a driller's truck with gasoline. In addition to filling the truck, the claimant filled a five-gallon can with gasoline for his own use.
4. The claimant did not require the use of an additional five gallons of gasoline while working on the job site.
Feeko argues, and we agree, that the evidence fails to establish that he stole gasoline for use in his own automobile. However, whether Feeko actually used the gasoline in his automobile is not dispositive to a finding of willful misconduct. He admits taking the additional five gallons of gasoline at the time he filled the company truck. Feeko's purported reason for taking the gasoline was to use it as a cleaning solvent for tools at his work site and to start a drill motor. The employer testified that the use of gasoline as a cleaning solvent was contrary to company policy and that the drill at Feeko's job site was electrically powered.
We are compelled to agree with the referee in that Feeko took gasoline from the employer's pump and brought it to a job site where it was not required. This clearly is conduct in disregard of standards of behavior which Feeko's employer can rightfully expect. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 97, 309 A.2d 165, 168-69 (1973). We are not concerned with what use was made of the gasoline but rather that the actual taking was in itself willful misconduct.
Whether conduct resulting in the discharge of an employee constitutes willful misconduct under the Act is a question of law subject to this Court's judicial review. Pennsylvania Engineering Corp. v. Unemployment Compensation Board of Review, 46 Pa. Commw. 305, 405 A.2d 1387 (1979).
Affirmed.
ORDER
The order of the Unemployment Compensation Board of Review at B-78-3-H-424, dated November 13, 1979, is affirmed.