William H. Mendlow, Ralph D. Tive, Pittsburgh, for appellant.
William L. Hammond, Sp. Deputy Atty. Gen., Frank F. Truscott, Atty. Gen., for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 175 Pa. Super. Page 262]
In this unemployment compensation case, the compensation authorities denied benefits to claimant, Virginia D. Kelleher, under section 402(e) of the Unemployment Compensation Law, 43 P.S. § 802, which provides: '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'. Claimant has appealed to this Court.
At the hearing before the referee the employer was represented by one J. M. Murray, who described himself as 'Foreman of the Hubbard and Company', claimant's last employer. Claimant did not appear because she thought the hearing was to be held the following day. Murray had a very limited knowledge of claimant's relations with the employer and apparently represented the employer only because 'the personnel man couldn't make it'. He testified that claimant had been employed by the company as a stenographer and clerk and that her salary was 'about 80 some dollars every two weeks' and that she was discharged on February 20, 1953 'For being absent too much * * * she was warned quite a number of times and we gave her quite a bit of consideration and all that'. Claimant, it appeared, in a period of five months preceding her dismissal had been absent from work a total of twenty-nine days. The several absences varied in duration from one day to ten days. Her last absence from work which resulted in her discharge was from February 16 to February 20, 1953.
The Board held a hearing at which claimant and her brother appeared and gave testimony. No representative of the employer appeared at this hearing. Claimant produced a certificate from a doctor to the effect that he had been treating her for a year for 'Neuroasthma' brought on by 'a nervous strain following
[ 175 Pa. Super. Page 263]
the sudden death of her sister, and she is taking care of her brother, who has been ill for the past four years since his discharge from the army'. Claimant testified that certain of her absences were due to illness and others due to the necessity of caring for her brother when he was ill.
Excessive absenteeism without good cause in the face of a warning by the employer that further absence from work would result in dismissal, constitutes willful misconduct. Devlin v. Unemployment Compensation Board of Review, 165 Pa. Super. 153, 67 A.2d 639; Sauer v. Unemployment Compensation Board of Review, 172 Pa. Super. 202, 92 A.2d 896. Absence from work with good cause may justify an employer in discharging an employe; but such absence does not amount to willful misconduct. Crib Diaper Service v. Unemployment Compensation Board of Review, 174 Pa. Super. 71, 98 A.2d 490. The referee made and the Board affirmed the following findings of fact: '2. During the course of her employment the claimant had been absent quite frequently without notice and had been warned that a continuance would result in her dismissal', and '4. On February 16, 1953 the claimant did not again report for work and did not give notification of any reason for this absence to the employer. The claimant failed to report for work from February 16 thru February 20, 1953, and at no time during this absence did she contact the employer.'
An order of the Board denying unemployment compensation benefits is conclusive only when based upon findings supported by the evidence, Sauers v. Unemployment Compensation Board of Review, 168 Pa. Super. 373, 77 A.2d 891, and, as stated by Judge Reno in Stillman v. Unemployment Compensation Board of Review, 161 Pa. Super. 569, at pages 571-572, 56 A.2d 380, at page 381: 'Where an act ascribes ...