Preservation Pennsylvania v. Unemployment Compensation Board of Review

In Preservation Pennsylvania v. Unemployment Compensation Board of Review, 673 A.2d 1044 (Pa. Cmwlth. 1996), the embezzlement drained the employer's funds and the employee was furloughed as a result of her employer's inability to pay her salary. The case was decided in that context. Contrary to the Board's analysis, whether the "actual reason" the employee in that case was separated from employment, i.e., furloughed due to the employer's inability to pay her salary, was a consequence of her embezzlement, was not the test outlined in Preservation Pennsylvania. Rather, Preservation Pennsylvania allows an employer to turn the clock back and substitute after-discovered misconduct for whatever the "actual reason" was for the separation, so long as employer proves that the employee concealed the misconduct while employed. While the opinion was written to address the specific factual situation presented, there is nothing in the opinion which suggests that its holding is limited to situations where the misconduct and the actual termination are interrelated. Indeed, to allow benefits merely because the actual reason for the employee's termination happened not to be related to his concealed criminal misconduct defies logic and serves no purpose. In Preservation Pennsylvania, the court first recognized the general rule that an employer seeking to deny benefits on the grounds of willful misconduct must prove that the employee's misconduct was the actual reason for the employee's separation from employment. Panaro v. Unemployment Compensation Board of Review, 51 Pa. Commw. 19, 413 A.2d 772 (Pa. Cmwlth. 1980). Although the stated reason for the employee's furlough was a budgetary issue, we allowed the employer to present after-discovered evidence of the employee's criminal misconduct in response to the unusual facts presented. The Court stated our holding as follows: Thus where evidence of an employee's embezzlement of an employer's funds, or other criminal conduct committed against an employer which causes the employee's unemployment, is received within a reasonable time after the employee's separation and the employer promptly acts to contest a determination of eligibility for benefits, the Board is not deprived of authority to permit evidence of the after-discovered criminal conduct. The Board may thereafter reconsider the employee's entitlement to benefits in light of the after-discovered criminal conduct and terminate benefits if the employer sustains its burden of proof. Preservation Pennsylvania, 673 A.2d at 1048.