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MICHAEL PICKETT v. COMMONWEALTH PENNSYLVANIA (10/08/80)

decided: October 8, 1980.

MICHAEL PICKETT, 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 Michael Pickett, No. B-170733.

COUNSEL

Andrew F. Erba, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 54 Pa. Commw. Page 223]

Michael Pickett (Employee) had been employed as a prison correctional officer by the City of Philadelphia (Employer) for more than eight years. He was discharged effective June 20, 1978. He has been

[ 54 Pa. Commw. Page 224]

    denied unemployment compensation benefits by the Bureau (now Office) of Employment Security, the referee and the Unemployment Compensation Board of Review (Board) because of willful misconduct 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).

The Employee appeals the Board's decision which found substantial evidence of habitual tardiness. He contends that five occasions of tardiness in five months is not "habitual," that he was discharged for poor performance rather than willful misconduct and that the Board capriciously disregarded competent evidence in reaching its decision.

From the record, it appears that on October 20, 1977 the Employee was given a "performance report" indicating that improvement was needed. On December 13, 1977, he was given a written notice of intention to dismiss, again indicating unacceptable job performance because of inter alia constant and excessive use of sick leave and habitual tardiness. On May 1, 1978, Pickett received an annual performance report which was "overall unacceptable" and, on June 20, 1978, was notified of his dismissal for "unacceptable work performance, including such areas as attendance, punctuality and attitude."

There is substantial evidence in the record to support the Board's finding that after receiving the notices in October and December, 1977, the Employee had seven occasions of tardiness. Tardiness without good cause, especially when accompanied by past violations and warnings, constitutes willful misconduct. Spicer v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 272, 407 A.2d 929 (1979). The Employee contends that the Board

[ 54 Pa. Commw. Page 225]

    should not have found seven occasions of tardiness since two of those occurred after May 1, 1978, the date of the report mentioned in his notice of dismissal. There is no merit in that contention. While the dismissal notice does refer to the report of May 1, 1978, it also states that the Employee was given every opportunity to improve his work performance and failed to do so. Clearly, the Board ...


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