Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald Wilson, No. B-173888.
Joseph F. Keener, Jr., with him Norman Hegge, Jr., for petitioner.
John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondents.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers.
[ 54 Pa. Commw. Page 166]
The Southeastern Pennsylvania Transportation Authority (SEPTA) has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's order awarding benefits to Donald Wilson, a discharged bus driver.
The facts as found by the Board and supported by substantial evidence are as follows: Wilson is a member
[ 54 Pa. Commw. Page 167]
of the Bethel Holy Commandment Church and, according to the tenets of his faith, must not work on the holy day of Rosh Chodesh which occurs every twenty-eight to thirty days. About two weeks before Rosh Chodesh on October 31, 1978, Wilson asked his dispatcher to excuse him from work on that date. He received no answer at that time and renewed his request frequently until the eve of the holy day, October 30. Wilson then repeated his request to the depot superintendent. The request was denied and Wilson was admonished to report to work the following day or be subject to dismissal. Due to his religious observance Wilson did not report for work on October 31 and he was discharged.
Wilson's application for unemployment compensation benefits was granted by the Bureau of Employment Security. This determination was affirmed by referee and the Board thereby rejecting SEPTA's contention that Wilson's absence on October 31 constituted willful misconduct within the meaning of 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).
Whether the facts as found below demonstrate willful misconduct is a question of law subject to our review. Lipfert v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 206, 406 A.2d 251 (1979). The Board concluded that they do not. We affirmed.
In Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976), the Supreme Court held that an employee's absence from work, though directly contrary to an employer's directive, does not constitute willful misconduct if the employee has good cause for his absence. Id. at 87, 351 A.2d at 634. We have ...