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DAVID SMALL v. COMMONWEALTH PENNSYLVANIA (11/21/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 21, 1978.

DAVID SMALL, 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 David Small, No. B-143817.

COUNSEL

Gregory S. Rubin, with him Shane & Rubin, for petitioner.

Elsa D. Newman, Assistant Attorney General, with her Gerald Gornish, Attorney General, for respondent.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 38 Pa. Commw. Page 547]

David Small (Claimant) appeals from a decision of the Unemployment Compensation Board of Review (Board) which denied benefits to him under the provisions of Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).*fn1

[ 38 Pa. Commw. Page 548]

Claimant was employed by Catalytic Corp. (Employer) from September 9, 1974, to September 30, 1975, as a planning engineer. He was discharged for "tardiness, unexcused absences and a disregard of company policies and supervisor's warnings." The Bureau of Employment Security (Bureau) awarded unemployment compensation benefits to the Claimant. The referee reversed the Bureau, finding that the Claimant had compiled a record of lateness and unexcused absences for which he had been warned. On the basis of that finding of fact, the referee concluded that the Claimant's employment record constituted willful misconduct. On appeal, the Board affirmed the referee's findings of fact and also affirmed the referee's conclusion of law.

In such circumstances our scope of review is limited to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. Rodites v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 128, 382 A.2d 1287 (1978). See also Section 510 of the Law, 43 P.S. § 830. Claimant contends that the evidence received by the referee will not support his findings of fact. After a careful review of the record, we are satisfied that there is ample substantial evidence to support those findings. The Claimant also contends that the findings were based on hearsay evidence, that the findings do not constitute willful misconduct and that the employer had not met its burden to prove willful misconduct. While Claimant's statement of applicable principles of law is correct, his application of them to the facts of this case is not.

[ 38 Pa. Commw. Page 549]

Accordingly, we will affirm the Board's decision and order.

Order

And Now, this 21st day of November, 1978, the order of the Unemployment Compensation Board of Review, dated April 14, 1977, denying benefits to David Small, is hereby affirmed.

Disposition

Affirmed.


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