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DERRICK FIELDS v. COMMONWEALTH PENNSYLVANIA (10/27/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 27, 1980.

DERRICK FIELDS, 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 Derrick Fields, No. B-171118.

COUNSEL

Terry L. Fromson, for petitioner.

Karen Durkin, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by President Judge Crumlish. Judge Williams, Jr., concurs in the result only.

Author: Crumlish

[ 54 Pa. Commw. Page 364]

Derrick Fields appeals an Unemployment Compensation Board of Review Order denying him benefits because of willful misconduct under 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. ยง 802(e). We remand.

During Fields' ten-month employment with the Institute of Pennsylvania Hospital (Institute), he reported late for work on 28 occasions. He had been repeatedly warned and had once been suspended. On July 21, 1979, he was notified in writing that his job would be terminated if he sustained three subsequent

[ 54 Pa. Commw. Page 365]

    late reports. Fields was late again four more times and was terminated. Fields contends he was not in willful violation because two occasions were illness-provoked.

"There is no question that 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), Bowers v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 171, 392 A.2d 890 (1978). It is also clear that absence from work because of illness in and of itself does not constitute willful misconduct.*fn1 Gardner v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 548, 372 A.2d 38 (1978), Unemployment Compensation Board of Review v. Kells, 22 Pa. Commonwealth Ct. 479, 349 A.2d 511 (1975).

In order for this Court to properly exercise its appellate review, the Board must make adequate findings of fact so as to resolve issues raised by the evidence. Miller v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 151, 415 A.2d 454 (1980), Curtis v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 462, 379 A.2d 1069 (1977). As we have said in the past, justification advanced by a claimant for his conduct is a crucial issue which the Board must resolve. Taylor v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 59, 410 A.2d 400 (1979). Here, Fields offered illness as an explanation for his lateness.

[ 54 Pa. Commw. Page 366]

The record establishes that Fields sought and received medical attention during the time in which he was charged with being late. The Board, however, made no findings as to whether the alleged illness prevented Fields from being on time for work. As the issue of illness, if credible, lends itself to justification, it must be resolved by the Board.

Order vacated and remanded.

Order

The Order of the Unemployment Compensation Board of Review, dated April 13, 1979, is vacated, and the record is remanded for the making of additional and more specific findings of fact and a new order.

Judge Williams, Jr., concurs in the result only.

Disposition

Order vacated. Case remanded.


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