Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Anthony Gamza, No. B-172045.
Daniel I. Murphy, with him, Donald J. Martin, Waters, Gallagher, Collins & Masterson, for petitioner.
Steven Marcuse, Assistant Attorney General, with him, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondents.
President Judge Crumlish and Judges MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 56 Pa. Commw. Page 136]
This is an appeal by Harry Durst and Maye Durst, as owners of Durst Buster Brown shoe store, from an order of the Unemployment Compensation Board of
[ 56 Pa. Commw. Page 137]
Review (Board) granting benefits to Anthony Gamza (claimant). The Board affirmed a referee's decision that the claimant had not committed willful misconduct, as to be ineligible by force of Section 402(e) of the Unemployment Compensation Law.*fn1
Until December 29, 1978, the claimant was employed by the Dursts as a salesman in their shoe store, having worked for them approximately one year. During the period of his employment claimant Gamza frequently reported to work obviously under the influence of alcohol. On those occasions, one of the employers testified, the alcohol would "just permeate from him." The claimant himself admitted at the referee's hearing that he did frequently arrive at work under the influence of alcohol. The claimant also admitted that his condition on those occasions was due to drinking at home the night before or in the morning before reporting to work. However, he was never found drinking on the job; and he never had to be sent home because of his condition.
The Dursts several times had conversations with the claimant about his drinking. In November 1978, about the Thanksgiving holiday, one of the employers, Harry Durst, told Gamza that his drinking was adversely affecting the business. Harry Durst also advised Gamza that he was expected to "straighten-out" his drinking problem by Christmas 1978 or he would be terminated. Upon that advice from his employer the claimant joined Alcoholics Anonymous.
Gamza's drinking decreased but did not cease. He admittedly continued his nocturnal drinking; and, on December 22, 1978, he again reported to work under the influence of alcohol. As they had done in the past, the owners permitted him to work that day.
[ 56 Pa. Commw. Page 138]
The claimant did not report to work again until December 29, 1978, having been involved in an automobile accident in the interim. On that date, according to Harry Durst, the claimant came to work showing signs of having been drinking. That day Gamza was discharged. According to the employer, the reason for the discharge was that the claimant had failed to ...