Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Candido Medina, No. B-171379-B.
Pamela S. Fisher, for petitioner.
Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Harvey Bartle, III, Acting Attorney General, for respondent.
Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Mencer.
[ 55 Pa. Commw. Page 324]
Candido Medina (claimant) has appealed from a decision of the Unemployment Compensation Board of Review (Board) which denied benefits on the ground that he was discharged from his employment because of willful misconduct.
Claimant was employed as a sanitation worker by Stroehmann Bread (employer) for five years. On June 2, 1978, claimant was arrested and incarcerated for the crime of assault, arising from an incident unrelated to his employment. Claimant had a friend notify the employer of his incarceration shortly after his arrest. He was subsequently convicted of this crime and imprisoned for six months. On August 24, 1978, the employer discharged claimant because of his continued absence from work. Upon his release from prison, claimant reapplied for his position with the employer. However, the employer by this time had replaced claimant and had no work available for him.
[ 55 Pa. Commw. Page 325]
The Board denied claimant's request for benefits on the basis of Section 402(e) of the Unemployment Compensation Law,*fn1 which provides that an employee shall be ineligible for any week "in which his unemployment is due to his discharge . . . for willful misconduct connected with his work." The issue before us is whether claimant's conduct rises to the level of willful misconduct, within the meaning of this section, for failing to report for work during a six-month period due to incarceration. We believe that it does.
It is important to recognize at the outset that claimant was not discharged because the employer felt that the claimant's conviction reflected upon his fitness for the position. Rather, the employer discharged claimant for his protracted absence from work. We believe that this factor is sufficient to sustain a denial of benefits for willful misconduct.
In Pettey v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 157, 159-60, 325 A.2d 642, 643 (1974), we set forth the elements that may be used to support a finding of absenteeism as willful misconduct:
'2. Failure to notify the employer in advance ...