Appeal from the Order of the Unemployment Compensation Board of Review in the case of Herndon B. White, No. B-181736.
Vaughn King, Associate Counsel, with him John O. J. Shellenberger, Deputy Attorney General, Jerry I. Drew, Deputy Attorney General, and Harvey Bartle, III, Acting Attorney General, for petitioner.
William Kennedy, Associate Counsel, with him Karen Durkin, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish, Jr. and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 452]
Philadelphia County Board of Assistance (Employer) appeals from a decision of the Unemployment Compensation Board of Review (Board) which found
[ 64 Pa. Commw. Page 453]
Herndon B. White (Claimant) was 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. § 802(e), and was eligible to receive unemployment compensation benefits.
Both the Bureau (now Office) of Employment Security and referee found Claimant ineligible for benefits but upon Claimant's appeal, the referee's decision was reversed by the Board.
Claimant was last employed as an Income Maintenance Worker II by the Employer from August 17, 1973 until October 29, 1979. Claimant was absent from work October 30, 31 and November 1, 1979. Each day of absence he reported to his Employer that he was ill. On October 31 the Claimant visited his doctor for treatment. On November 7, 1979, when the Claimant had not yet returned to work, he called his Employer and requested information to obtain a medical leave of absence without pay.*fn1 The Claimant was advised by letter from the Employer dated November 8, which was received on November 9, 1979, that he was required to submit medical verification of his illness by November 14, 1979. When Claimant advised his Employer that his doctor was on vacation and would not return until November 23, he was granted an extension until November 19 for the purpose of submitting medical verification. When Claimant did not comply, Employer notified him on November 27 that he had been terminated. On November 26, the Employer received a letter from Claimant's doctor verifying that the doctor had, in fact, been out of his office from November 7 to November 23, that he had been treating Claimant and that Claimant was physically unable to return to work since November 1. The Board concluded that
[ 64 Pa. Commw. Page 454]
Employer's request that medical verification be submitted by November 19 when it knew the doctor was not to return to his office until November 23 was unreasonable.
Our Supreme Court has held that refusal by an employee to comply with a rule or demand made by the employer which is unreasonable when applied to the employee's circumstances is not willful misconduct. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Where the party with the burden of proof, in this instance the Employer, fails to prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be ...