Food Fair Stores, Inc. v. Commonwealth

Opinion by Judge Rogers,

Tbe unemployment compensation claimant in this case, Robert J. Dilbeck, Sr., bad been employed by Food Fair Stores, Inc. for more than fifteen years. On December 6, 1971, bis work assignment was as a helper on a delivery truck. On that date be and tbe driver of a Food Fair truck were observed by private security personnel removing merchandise belonging to Food Fair and worth more than $900 from tbe truck to a private garage at tbe driver’s residence. Both men were immediately confronted and arrested. They were discharged from their employment tbe following day. Dilbeck was subsequently acquitted of criminal charges. Although Dilbeck was a member of a union of Food Fair employes, neither be nor his union instituted grievance proceedings over bis firing.

At bearings before a referee of tbe Board of Review, Dilbeck admitted bis participation in tbe act of removing bis employer’s property from its truck to bis driver’s private garage and explained it as obedience of bis superior’s, tbe driver’s, orders. Tbe referee upheld tbe Bureau of Employment Security’s denial of unemploy *537 ment compensation but tbe Board of Review reversed. Food Fair, Inc. bas appealed the Board’s action.

Tbe question, of course, is whether Dilbeck’s unemployment after bis firing was “due to bis discharge . . . from work for willful misconduct connected with bis work.” Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P. L. [1937] 2897, §402(e), 43 P.S. §802(e). This Court bas adopted tbe standard definition of wilful misconduct in this kind of case. In Fields v. Unemployment Compensation Board, 7 Pa. Commonwealth Ct. 200, 202 , 300 A. 2d 310, 311 (1973), Judge Mencer wrote: “As a general principle, tbe act or course of conduct must be wanton or willful disregard of tbe employer’s interest, a deliberate violation of tbe employer’s rules, a disregard of tbe standards of behavior which tbe employer bas tbe right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of tbe employer’s interest, or of the employee’s duties and obligations to tbe employ-ex’.” Tbe salient phrases of tbe definition for purposes of this case are “deliberate violation of tbe employer’s rules” and “disregard of tbe standards of behavior which tbe employer bas tbe right to expect of bis employee.”

Tbe merchandise here involved was destined for return to tbe employer’s warehouse. Dilbeck’s testimony includes bis acknowledgment that tbe warehouse contained a “drop room” to which these goods sboxxld have been returned by him and bis driver. Hence, tbe delivery by tbe driver and Dilbeck of this property to the driver’s home was a deliberate violation of a rule of tbe employer known to Dilbeck.

The Board of Review found excuse for Dilbeck’s action in bis position of subordination to tbe driver. While Dilbeck testified that be was subject to direction *538 by the driver, he explained Ms participation in the delivery of Ms employer’s property to a private garage by the assertion that he believed that the property would later be delivered to the “drop room” by the driver. He admitted, however, that he made no inquiry as to the driver’s intention on December 6, 1971. Clearly, Dilbeek’s employer had the right to expect a Mgher standard of behavior than that of the claimant on tMs occasion.

The question of whether the actions of an employe are or are not wilful misconduct is one of law subject to review by this Court. See Rone Unemployment Compensation Case, 211 Pa. Superior Ct. 425 , 235 A. 2d 432 (1967). We believe the Board erred in its conclusion that the claimant’s participation in the delivery of the employer’s property to another employe’s residence was not wilful misconduct.

In the interest of completeness, we note that a single act of misconduct by a long-term employe with a good employment record may constitute wilful misconduct. (Salvitti Unemployment Compensation Case, 189 Pa. Superior Ct. 102 , 149 A. 2d 586 (1959)) and that acquittals of criminal charges arising out of an employe’s behavior do not answer the question whether that behavior was misconduct rendering him ineligible for unemployment compensation. An employe owes his employer loyalty, diligence, fidelity, obedience and, above all, honesty.

Order

And Now, tMs 29th day of January, 1974, the order of the Unemployment Compensation Board of Review, allowing benefits, is set aside.