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CURTIS KELLS v. COMMONWEALTH PENNSYLVANIA (10/11/77)

decided: October 11, 1977.

CURTIS KELLS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Curtis Kells, No. B-124305-A.

COUNSEL

Andrew F. Erba, with him David L. Hill, for petitioner.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 32 Pa. Commw. Page 143]

Curtis Kells appeals from a decision of the Unemployment Compensation Board of Review that he is ineligible for benefits because he lost his work as the result of misconduct.*fn1

The appellant had worked for the Commercial Carpet Company for thirteen months when on May 6, 1974 he was dismissed for alleged excessive unjustified absenteeism.*fn2 A referee originally found the appellant eligible for benefits but the Board, after a remand and two additional hearings, reversed and denied benefits, finding that Mr. Kells' absenteeism did constitute willful

[ 32 Pa. Commw. Page 144]

    misconduct. An appeal to this Court resulted in a remand to the Board for the purpose of determining whether or not the claimant's absences prior to May 5, 1974 were justified and were taken with proper notice to the employer. Unemployment Compensation Board of Review v. Kells, 22 Pa. Commonwealth Ct. 479, 349 A.2d 511 (1975). The Board, without a further evidentiary hearing, made additional findings of fact in response to our remand and again denied benefits.

We therefore proceed, within our normal scope of review in unemployment compensation cases, to a determination of whether the findings of the Board of Review are supported by substantial evidence on the record. Gladieux Food Services, Inc. v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 142, 365 A.2d 889 (1976).

The claimant's contention that the record contains only hearsay evidence that he was frequently absent during February, March and April of 1974, is without effect. The claimant himself introduced check stubs which accompanied sick benefit payments showing a number of absences.

The real issue is whether or not the claimant's absences were reported to the employer in a proper and timely manner consistent with company rules. It is settled that a failure to so report "does constitute willful misconduct justifying discharge and precluding the recovery of benefits." Kells, supra at 482, 349 A.2d at 513, citing Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 309 A.2d 72 (1973). See also Gardner v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 548, 372 A.2d 38 (1977).

The Board of Review on remand found that: "The claimant usually failed to give notice of the reason for his absence." Kells ...


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