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ADEPT CORPORATION v. COMMONWEALTH PENNSYLVANIA (11/23/81)

decided: November 23, 1981.

ADEPT CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Larry D. Colbert, No. B-187927.

COUNSEL

Deborah A. Hughes, for petitioner.

Francine Ostrovsky, Assistant Counsel, with her, Richard Wagner, Chief Counsel, Robert Skwaryk, Associate Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 62 Pa. Commw. Page 567]

This is an appeal by the Adept Corporation (employer) from an order of the Unemployment Compensation Board of Review (Board). The Board's order affirmed the decision of a referee which held that Larry D. Colbert (claimant) was entitled to receive unemployment compensation benefits because he had not engaged in willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

The claimant worked for the employer from October 25, 1979 until his discharge on April 25, 1980. During the course of his employment, he developed a history of absenteeism. Because of this, the employer

[ 62 Pa. Commw. Page 568]

    reprimanded the claimant and issued a written notice of probation to him on March 28, 1980. It stated that all employees were expected to work a 40-hour week "except for circumstances of illness emergencies and/or personal business" and informed the claimant that he was placed on probation for 2 weeks. The notice warned him that, unless his work hours met the employer's expectations, he would be discharged.

On April 21 and 22, 1980, the claimant, who lived 12 to 13 miles from work, was absent from his job because of automobile trouble. He properly notified the employer of the cause of his impending absence. At that time, the employer did not inform the claimant that he would lose his job if he did not appear at work. The claimant returned to work on April 23, 1980 and worked until the end of the day on April 25, 1980, when he was dismissed for excessive absenteeism. On April 27, 1980, he filed an application for unemployment compensation benefits. The Office of Employment Security found the claimant ineligible for benefits. Following a hearing, a referee reversed that determination and awarded benefits to the claimant. The Board adopted the referee's findings of fact and conclusions of law and sustained his decision. This appeal followed.

The employer contends that several of the referee's findings of fact are unsupported by substantial evidence and that the claimant's history of absenteeism constituted willful misconduct. We reject both contentions.

The burden of proving willful misconduct so as to render a claimant ineligible for unemployment compensation benefits is on the employer. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979). In this case, the burden was on the employer to ...


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