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WILLIAM ROEBUCK v. COMMONWEALTH PENNSYLVANIA (02/03/78)

decided: February 3, 1978.

WILLIAM ROEBUCK, 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 William Roebuck, No. B-132720.

COUNSEL

John D. Gibson, with him James M. Gdula, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Susan Shinkman, Assistant Attorney General, Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

Judges Crumlish, Jr. and Blatt, sitting as a panel of two. Opinion by Judge Blatt.

Author: Blatt

[ 33 Pa. Commw. Page 492]

William Roebuck (claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying him unemployment compensation.

[ 33 Pa. Commw. Page 493]

The claimant had been employed as a shuttle car operator by the Island Creek Coal Co. (employer) for a period of fifteen months. He had a history of absenteeism and had been previously suspended three times as a result thereof, but, pursuant to the employer's policy, he was reinstated each time when he produced records indicating that his absences had been caused by illness. On February 4, 1976 he had again been absent from work for a period of six working days without reporting off, and his employer on that date discharged him by letter for failure to report to work.

The Bureau of Employment Security (Bureau) denied the claimant's application for unemployment compensation, determining that he had been discharged for wilful misconduct and was consequently ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law*fn1 (Act), 43 P.S. § 802(e). Upon appeal, the referee affirmed the Bureau's denial of compensation but modified the determination to indicate that benefits were being denied under Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1), which denies benefits where a claimant has voluntarily left work without cause of a necessitous and compelling nature. Upon further appeal, the Board affirmed the referee's denial of benefits but modified the determination so as to indicate that benefits were denied because of wilful misconduct. This appeal followed.

Section 510 of the Act, 43 P.S. § 830, provides that this Court's scope of review in unemployment compensation appeals is confined to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. The claimant argues here that: (1) the Board's findings are not supported by substantial evidence, and (2) he

[ 33 Pa. Commw. Page 494]

    was not in violation of his employer's absenteeism policy at the time of his discharge so that the employer failed to meet his burden of establishing that the claimant was guilty of wilful misconduct.

The question of whether or not an employe's action which led to his dismissal rises to the level of wilful misconduct is one of law and is, therefore, subject to our review. O'Keefe v. Unemployment Compensation Board of Review, ...


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