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HENRY ALLEN v. COMMONWEALTH PENNSYLVANIA (11/13/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 13, 1980.

HENRY ALLEN, 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 Henry Allen, No. B-173843.

COUNSEL

Michelle R. Terry, for petitioner.

Steven R. Marcuse, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 54 Pa. Commw. Page 508]

In this unemployment compensation appeal, claimant*fn1 questions a denial of benefits by the board,*fn2 affirming the referee's conclusion that claimant was ineligible for compensation because discharged for willful misconduct.*fn3

Having worked as a packer for his employer*fn4 only six months, claimant missed a total of 27 days and was late for work on two days. On February 5, 1979, he received a two-day suspension for tardiness, and was warned that any continued record of absenteeism would lead to discharge. Claimant then took off three days -- April 4, 6 and 9 -- for personal business, which the employer classified as unexcused absences. When claimant failed to call in or report for work on April 16 as requested by the employer, he was discharged for excessive absenteeism and tardiness after warning.

Claimant contends that the employer failed to meet the burden of proving willful misconduct, and that the alleged actions did not warrant a finding of willful misconduct as a matter of law.

[ 54 Pa. Commw. Page 509]

There is substantial evidence in the record of testimony to support the findings, made by the referee and adopted by the board, that claimant missed work several times after receiving a warning from his employer that continued absenteeism would be cause for dismissal. Therefore, we cannot disturb those findings. Edwards v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 556, 414 A.2d 1124 (1980).

We have held that continued excessive absence or lateness in the face of warnings by the employer constitutes willful misconduct within the meaning of Section 402(e). Fitzgerald v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 629, 411 A.2d 899 (1980); Woodson v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 526, 300 A.2d 299 (1973). Claimant's behavior here evidences a willful disregard of the employer's interests and of his own duties and obligations.

Accordingly, we affirm the denial of compensation.

Order

And Now, this 13th day of November, 1980, the order of the Unemployment Compensation Board of Review, No. B-173843, dated July 11, 1979, is affirmed.

Disposition

Affirmed.


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