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GREGORY MAXWELL v. COMMONWEALTH PENNSYLVANIA (11/19/80)

decided: November 19, 1980.

GREGORY MAXWELL, 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 Gregory Maxwell, No. B-168858.

COUNSEL

Andrew F. Erba, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 54 Pa. Commw. Page 605]

Gregory Maxwell (claimant) as appealed from a decision under Section 402(e) of the Unemployment Compensation Law*fn1 which denied benefits on the ground of willful misconduct. We affirm.

Claimant was employed as a bus driver by South Eastern Transportation Association (SEPTA). He was discharged when he failed to report his absence at least four hours prior to the start of his shift, in compliance with the employer's rule. The Unemployment Compensation Board of Review (Board) found that Maxwell did not notify his employer of his illness until the following day and that Maxwell had received a prior suspension and final warning, before his discharge, to improve his attendance record.

Our scope of review of decisions of the Board, where, as here, the party with the burden of proof prevailed, is limited to questions of law and to a determination of whether the findings of the Board are supported by substantial evidence. Condominium Corp. of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 324, 398

[ 54 Pa. Commw. Page 606]

A.2d 1122 (1979). While many discrepancies exist between the testimony of SEPTA's representative and that of the claimant, the Board has the power to make findings of fact based upon the credibility of witnesses. Dent v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 578, 399 A.2d 1168 (1979). In any event, claimant does not dispute that he failed to comply with the employer's rule requiring notification four hours prior to the start of a shift; rather, he asserts that he called in approximately one hour after the start of his shift. This court has repeatedly held that failure to report an illness in the proper manner under company rules does constitute willful misconduct justifying discharge and precluding recovery of benefits. Gallagher v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 160, 378 A.2d 502 (1977); Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 309 A.2d 72 (1973). Furthermore, a prior suspension for unreported absence is an additional factor which may be considered by the Board in making a determination of willful misconduct. Dudley v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 186, 387 A.2d 996 (1978).

Claimant contends that his conduct was justifiable, citing Kindrew v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 9, 388 A.2d 801 (1978). In Kindrew, however, the employer refused to excuse his employee's absence from work, regardless of whether the employee complied with the notification requirement.

Claimant further relies on Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976), to argue that SEPTA's notice rule was "unreasonable." Frumento stated that it may be necessary to look beyond the breach of the ...


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