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JOSE GONZALEZ v. COMMONWEALTH PENNSYLVANIA (12/06/78)

decided: December 6, 1978.

JOSE GONZALEZ, 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 Jose Gonzales, No. B-140780-B.

COUNSEL

Michael Goldberg, with him Alan Linder, for petitioner.

Michael Klein, Assistant Attorney General, for respondent.

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

Author: Crumlish

[ 39 Pa. Commw. Page 72]

Jose Gonzalez (Claimant) appeals a decision of the Unemployment Compensation Board of Review (Board) affirming a referee's determination of ineligibility under Section 402(e) of the Unemployment Compensation Law.*fn1

We affirm.

Claimant, who speaks only Spanish, was hired under the CETA*fn2 program by the City of Lancaster in April, 1975, and worked for 11 months as a laborer in the city garage. The Board found that he was first warned about absenteeism after he missed 135 hours of work within a three-month period; that further absenteeism prompted a second written warning in February, 1976; that these absences were unreported; that Claimant was suspended for three days when he left the work site because he was dissatisfied with a work assignment; and that he was finally discharged in March, 1976, because of his excessive and unreported absenteeism.

Claimant first urges on appeal that Employer failed to adduce competent evidence of willful misconduct

[ 39 Pa. Commw. Page 73]

    sufficient to sustain his burden of proof and to support the Board's finding of willful misconduct.*fn3

It is well settled that the burden of proving willful misconduct rests with the employer. This burden may be shouldered by proof that an employee has been excessively absent, and that an employee has disregarded absentee warnings, Pettey v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 157, 325 A.2d 642 (1974), or by proof of an employee's failure to report absences in the manner prescribed by his employer, Mentz v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 287, 370 A.2d 1232 (1977); Unemployment Compensation Board of Review v. Kells, 22 Pa. Commonwealth Ct. 479, 349 A.2d 511 (1975).

Claimant's attack on the Board's findings is premised on his belief that the only evidence of excessive and unreported absenteeism is hearsay which, alone, cannot support a finding of willful misconduct.

At the referee's hearing, Howard Goldberg, the City's personnel manager, testified on the issue of Claimant's absenteeism and his warnings and suspension. He further testified that CETA employees were required to notify their supervisor of any intended absences. Edwin Ewell, the City's CETA coordinator, testified that Claimant did not ...


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