Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Richard P. Mahoney, No. B-164756.
Edward Rocap, of Rocap, Rocap & Giunta, for petitioner.
Elsa D. Newman, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondents.
Judges Blatt, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge MacPhail. President Judge Bowman did not participate in the decision in this case.
[ 50 Pa. Commw. Page 274]
American Process Lettering, Inc. (Employer) appeals a determination by the Unemployment Compensation Board of Review (Board) which granted Richard P. Mahoney (Claimant) unemployment compensation benefits. The Board reversed the decision of the referee which had declared Claimant ineligible for benefits 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
The Board found as facts that Claimant was employed for approximately three years as a silk screen printer at a final hourly rate of $4.50 and that Claimant was discharged on April 27, 1978, on which date he was two minutes late for work. The Board determined further that prior to Claimant's last day of work he had been late "on occasion" an average of three minutes and that after Claimant was warned about his tardiness, his attendance record improved. The referee's pertinent findings were that during the course of his employment, the Claimant incurred "frequent latenesses" and that the Claimant was warned by his Employer that if he continued to be tardy, he would be fired.
On the basis of its findings of fact, the Board concluded that Claimant's occasional tardiness did not materially interfere with Employer's best interests. Therefore, the Board found that Claimant's behavior did not constitute willful misconduct under Section
[ 50 Pa. Commw. Page 275402]
(e) of the Law. Accordingly, the Board granted benefits.
Employer presents the following two issues to us on appeal: (1) whether employee's actions constitute willful misconduct is a question of law to be resolved by the reviewing court and (2) whether an employee who is chronically tardy or absent is guilty of willful misconduct, thus rendering him ineligible for unemployment compensation benefits. In regard to the latter issue, since the Board only made findings that Claimant was discharged for tardiness, we will not address the question of whether chronic absences makes one guilty of willful misconduct.
Since the Employer had the burden of proving willful misconduct on the part of Claimant, and did not prevail before the Board, "our scope of review is limited to a determination of whether the Board's findings of fact can be sustained without a capricious disregard of competent evidence." Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 238, 241, 397 A.2d 42, 44 (1979). Thus the real issue involved here is whether the Board's finding of "occasional lateness," which did not amount to willful misconduct, can be sustained without a disregard of competent evidence.
We hold that a finding of "occasional lateness" cannot be sustained without a disregard of the evidence of Claimant's time cards from which the Employer's representative testified that Claimant was tardy approximately twenty-four times in a twelve week period. Nor can such a finding be sustained without disregard for Claimant's testimony that he was late about six or seven times each month in 1978 ...