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GEORGE T. HOLMES v. COMMONWEALTH PENNSYLVANIA (12/14/81)

decided: December 14, 1981.

GEORGE T. HOLMES, 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 George T. Holmes, No. B-185355.

COUNSEL

R. Michael Owens, for petitioner.

William Kennedy, Associate Counsel, with him Richard Wagner, Chief Counsel, Robert F. Skwaryk, Associate Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Rogers

[ 63 Pa. Commw. Page 166]

We have before us for review an order of the Unemployment Compensation Board of Review denying the claim for benefits of George T. Holmes, a former sanitation worker for the City of Philadelphia, on the ground that Mr. Holmes was discharged from his position of employment on account of his willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law.*fn1

Following a hearing attended by the claimant and his wife and Mr. James W. Sinclair, Personnel Investigation Supervisor for the City's Streets Department, a referee found that Mr. Holmes had been discharged on March 10, 1980 for failing on numerous occasions both to report for duty and to notify his employer of the impending absence, offenses for which he had been previously reprimanded and disciplined, including a total of seven days of suspension in 1978 and 1979. The referee further found that the claimant was absent from work without proper and required notification on twenty-five occasions in 1979 and that, on two specified dates in January, 1980, the claimant ceased in the performance of his duties before the end of his shift and without the permission of his superiors. The Board affirmed this determination and this appeal followed.

[ 63 Pa. Commw. Page 167]

The claimant does not here seriously contest the factual findings recounted above*fn2 but argues in mitigation that he has long suffered from episodes of heart palpitations which require him to be frequently absent from work and, if the onset of such an episode occurs during working hours, to suddenly leave his post. No medical evidence was adduced in support of this contention. Moreover, on the issue of the claimant's failure to report his illness in the manner required by employer rule, the claimant testified not that his physical condition prevented such notification but somewhat inconsistently both that he had reported his absences and that he had diligently attempted to report them but had been unable to do so.

[ 63 Pa. Commw. Page 168]

The applicable legal principles were recently stated in Gochenauer v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 354, 356, 429 A.2d 1246, 1248 (1981):

We have held repeatedly that while absenteeism due to illness does not generally constitute willful misconduct, a failure to report an illness in the manner required by company rules, particularly after receiving a warning, does constitute wilful misconduct. Patrick v. Unemployment Compensation Board of Review, 41 Pa. Commw. 238, 398 A.2d 1095 (1979) and Ralston v. Unemployment Compensation Board of Review, 18 Pa. Commw. 378, 336 A.2d 654 (1975). The question of whether notice was given to the employer is one of fact, while the sufficiency of the notice is a matter of law. Unemployment Compensation Board of Review v. Blouse, 23 Pa. Commw. 66, 350 A.2d 220 (1976).

The referee, affirmed by the Board, resolved the factual issue of notification against the claimant and this finding is adequately ...


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