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[J-62-00] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT VIRGINIA K. McCANN, Appellee : : : : : : : : : : : : No. 222 M.D. Appeal Dkt. 1999

v.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellant

Appeal from the Order of the Commonwealth Court entered 1/20/99 at 2658 CD 1996 awarding counsel fees assessed against the Unemployment Compensation Board of Review at B-9603-C-0096

Argued: May 1, 2000

OPINION

MR. JUSTICE SAYLOR

DECIDED: July 19, 2000

This case concerns the propriety of an assessment of counsel fees against Appellant, the Unemployment Compensation Board of Review (the "Board"), under Pennsylvania Rule of Appellate Procedure 2744. Appellee, Virginia McCann ("McCann"), was employed by CR's Friendly Market ("Employer") until April 30, 1996, when she was discharged for allegedly looking through a co-employee's purse. McCann subsequently applied for unemployment

compensation benefits, which were initially denied by the Job Center upon a finding of willful misconduct. At the ensuing hearing before the unemployment compensation referee, Employer's manager, Gregory Golden, testified that McCann had searched the purse of another employee, Katina Fisher, looking for a two-dollar bill that had previously been in the drawer of the cash register. Mr. Golden explained that, although

he did not personally observe the incident, the circumstances of its occurrence were conveyed to him by Ms. Fisher and another employee, John Watts. Mr. Golden

specifically stated that McCann was discharged for "looking through another employee's personal property without their permission." Employer also offered an unsworn

statement signed by Mr. Watts explaining the incident. McCann, acting pro se, testified that she had tried to purchase the two-dollar bill from the cash register only to learn that it was missing. McCann denied having searched Ms. Fisher's purse, explaining that she had accidently observed the two-dollar bill in the side pocket of the purse while picking it up and showed the subject bill to her co-worker, Mr. Watts. Following the hearing, the referee awarded benefits upon concluding that Employer offered no evidence of willful misconduct by McCann. On Employer's appeal, rejecting McCann's testimony as not credible, the Board found that McCann intentionally and purposefully looked into Ms. Fisher's purse, thus invading the privacy of a co-worker, without good cause. Concluding that McCann's conduct violated the standards of behavior that Employer could rightfully expect from its employees, the Board held that McCann engaged in willful misconduct disqualifying her from receiving unemployment compensation benefits.1

1

Section 402(e) of the Unemployment Compensation Law provides that: An employe shall be ineligible for compensation for any week -*** (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . .

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

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