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UNIVERSITY PITTSBURGH v. COMMONWEALTH PENNSYLVANIA (12/19/80)

decided: December 19, 1980.

UNIVERSITY OF PITTSBURGH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. REBECCA J. HOPEWELL, INTERVENING PARTY RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Rebecca J. Hopewell, No. B-177405.

COUNSEL

James Oliver Hunter, for petitioner.

No appearance for respondent.

Linda C. Liechty, for intervening party respondent.

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

Author: Craig

[ 55 Pa. Commw. Page 494]

The question in this unemployment compensation appeal is whether the Unemployment Compensation Board of Review, in adopting the referee's findings and decision, capriciously disregarded competent evidence*fn1 in concluding that the employer, the University of Pittsburgh, did not meet its burden of establishing willful misconduct*fn2 as a basis for the denial of benefits to claimant Rebecca J. Hopewell after the employer discharged her.

[ 55 Pa. Commw. Page 495]

The referee's decision, as adopted by the board, begins with undisputed findings that the claimant (1) had worked as an administrative assistant for employer*fn3 and (2) was discharged June 7, 1979 on grounds of alleged excessive tardiness, insubordination and failure to follow procedures. The key disputed finding is:

3. The claimant was tardy and permitted by her employer to make up the time and was never warned that continued tardiness would result in her discharge.

The referee also found that the claimant had not been insubordinate, had followed procedures and had always performed her work to the best of her ability. As to the matters of insubordination and failure to follow procedures, we find no sufficient basis to reject the findings of the compensation authorities.

Turning to the issue of the claimant's tardiness, "the law is clear that habitual tardiness, particularly after warnings, is sufficient evidence to sustain a finding of willful misconduct." Markley v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 148, 151, 407 A.2d 144, 146 (1979).

Before May 25, 1979, the claimant's pattern of arrival at work after the starting time is undisputed. Although the employer claims that the claimant's total tardiness in that period exceeded 160 hours, there is evidence that the claimant's pay was docked accordingly, during at least part of that period, thus supporting claimant's position that there was an agreement that ...


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