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CHESTER W. GOCHENAUER v. COMMONWEALTH PENNSYLVANIA (05/29/81)

decided: May 29, 1981.

CHESTER W. GOCHENAUER, 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 Chester W. Gochenauer, No. B-176846.

COUNSEL

Michael Goldberg, for petitioner.

Francine Ostrovsky, Assistant Attorney General, with her Elsa D. Newman-Silverstein, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Macphail

[ 59 Pa. Commw. Page 355]

Chester W. Gochenauer (Claimant) has appealed from an order of the Unemployment Compensation Board of Review which denied unemployment compensation benefits for willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Claimant was employed by International Travel Trailer, Inc. (Employer) from August, 1978 until March, 1979. His last position was that of a mill man and his final day of work was March 26, 1979. On that date Claimant met with the shop foreman and operations manager relative to his poor attendance record. At that meeting Claimant signed a form acknowledging the fact that he had received several verbal warnings regarding excessive tardiness and absenteeism and that a doctor's note would be required for future medical absences. The form also included a warning that failure to improve in the areas mentioned would necessitate termination of employment.

Claimant was absent from work the following day, March 27, 1979, due to illness and did not return until April 9, 1979 when he was informed that his employment

[ 59 Pa. Commw. Page 356]

    had been terminated. Employer received no notice as to Claimant's condition between March 28, when Claimant's son-in-law delivered a doctor's note which stated that Claimant was advised "to remain home from work until he is symptom free," and April 9, 1979.

The Bureau (now Office) of Employment Security found Claimant ineligible for unemployment compensation benefits under Sections 401(d) and 402(e) of the Law, 43 P.S. ยงยง 801(d) and 802(e). After a hearing, the referee affirmed based solely on Section 402(e). The decision of the referee was subsequently affirmed by the Board and the present appeal was taken.

Two issues have been presented for our consideration: 1) is the Board's Finding of Fact No. 3 supported by substantial evidence and 2) did the Board err in finding that Claimant is guilty of willful misconduct?

It is well settled that the burden of proving willful misconduct is on the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Where the party with the burden of proof prevails below, our scope of review is limited to a determination of whether an error of law has been committed and whether the necessary findings of fact are supported by substantial evidence. Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 191, 415 A.2d 425 (1980). The question of whether ...


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