Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Daniel J. Gallagher, No. B-133192.
Paul G. Domolakes, with him Charles A. Bressi, Jr., 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.
[ 32 Pa. Commw. Page 161]
This is an appeal by Daniel J. Gallagher (appellant) from an order of the Unemployment Compensation Board of Review (Board), dated August 5, 1976, in which the Board affirmed its referee's decision denying unemployment compensation benefits to appellant pursuant to Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (Act) on the ground that appellant had been discharged for wilful misconduct.
[ 32 Pa. Commw. Page 162]
Appellant was employed as a machine operator by Universal Packaging Corporation of Mt. Carmel, Pennsylvania for a little over three years. The record shows that during the first nine months of 1975, appellant was either absent from or late for work a total of thirty-nine times (not including temporary layoff) due to family or personal illness. Appellant had received two written warnings concerning his unexcused lateness and absences from his shift supervisor; one on August 11, 1975 which warned appellant about arranging his personal business appointments so that they would no longer interfere with his work schedule and the start of his working day,*fn1 and another on September 24, 1975 which warned appellant about his unexcused absences and lateness. On October 8, 1975, appellant delivered a doctor's certificate to his employer which stated that appellant would be under the doctor's care from October 8, 1975 until October 13, 1975 but that appellant would be able to return to work on October 13, 1975. It is undisputed that appellant did not report to work on October 13, 1975 and did not notify his employer that he would be absent. Upon reporting to work on October 14, 1975, appellant was discharged for his failure to give proper notice of his absence the previous day.
In this appeal, the appellant challenges the findings of the Board as not being supported by the evidence and predicates his argument upon the assumption that his absence was due to illness which was properly reported on October 8, 1975. The Board found that the properly reported absence of October 8, 1975 did not include the work day of October 13,
[ 32 Pa. Commw. Page 1631975]
,*fn2 on which date appellant failed to report for work or to contact the employer to give proper notice of his absence. The existence of the company policy which required employees to give the employer proper notice of their absence before the beginning of their assigned shift was not disputed. That appellant was aware of this policy is evidenced by his past conduct in following this policy and by the two writ ten warnings which he had received from his shift supervisor.
Our scope of review in unemployment compensation cases is confined to questions of law and, absent fraud, a determination as to whether the Board's findings are supported by the evidence. Questions of credibility, evidentiary weight, and the inferences to be drawn from the evidence are for the Board to decide. Unemployment Compensation Board of Review v. Haughton Elevator Co., 21 Pa. Commonwealth Ct. 307, 345 A.2d 297 (1975); Yasgur v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 33, 328 A.2d 908 (1974).
Section 402(e) of the Act, 43 P.S. § 802(e) provides that an employee shall be ineligible for unemployment 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. . . ." Although the term "wilful misconduct" is not defined in Section 402(e) of the Act, the courts have established a definition. In Kentucky Fried Chicken of Altoona, Inc. v. ...