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DAVID PERMINTER v. COMMONWEALTH PENNSYLVANIA (03/11/81)

decided: March 11, 1981.

DAVID PERMINTER, 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 David Perminter, No. B-175631.

COUNSEL

Albert J. Jones, for petitioner.

Elsa D. Newman-Silverstine, Assistant Attorney General, with her, Gary J. Marini, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 57 Pa. Commw. Page 427]

The petitioner, David Perminter, seeks review of an order of the Unemployment Compensation Board of Review (Board) denying benefits. The Board held that his discharge had been for willful misconduct and that he was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e).

The petitioner was employed by Republic Steel Corporation as a stock handler until May 22, 1979, when he was discharged for excessive tardiness. His application for unemployment benefits was denied by the Office of Employment Security which found that he had been discharged for willful misconduct, from which decision he filed a timely appeal and was given a hearing before a referee on July 24, 1979. The referee's decision affirming the denial of benefits was in turn upheld by the Board which made the following relevant findings of fact:

[ 57 Pa. Commw. Page 4282]

. From January 1, 1979 until his discharge, the [petitioner] reported to work late on eleven occasions.

3. The [petitioner] received several warnings in regard to tardiness.

4. After reporting to work late on three occasions in May, 1979 the [petitioner] was discharged for excessive tardiness.

Our scope of review in cases such as this where the services of petitioner have been found to have been terminated because of his willful misconduct is to determine whether or not the findings of fact made by the Board are supported by substantial evidence, Hoffman v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 350, 409 A.2d 955 (1980), and the issue of whether or not those findings demonstrate that the petitioner's conduct rose to the level of willful misconduct is a question of law to be answered by this Court. Maiers v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 338, 409 A.2d 956 (1980).

The petitioner argues that the Board's findings of fact are not supported by substantial evidence inasmuch as the referee at the hearing used documents objected to as hearsay to ...


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