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HANLON & WILSON COMPANY v. COMMONWEALTH PENNSYLVANIA (11/17/82)

decided: November 17, 1982.

HANLON & WILSON COMPANY, 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 Donald N. Rugito, No. B-197253.

COUNSEL

Stephen J. Stabler, Reed, Smith, Shaw & McClay, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Rogers

[ 70 Pa. Commw. Page 72]

Hanlon & Wilson Company (employer), a manufacturer of aircraft exhaust systems in Jeanette, Pennsylvania, seeks review of a decision of the Unemployment Compensation Board of Review that Donald Rugito, a former tool and die maker with the employer discharged for excessive absenteeism, is eligible for unemployment compensation benefits.

A hearing in the matter of the claimant's eligibility was conducted by a referee on March 11, 1981 at which time the claimant, represented by counsel, appeared and testified as did the employer's Personnel Director and General Foreman. The particulars of the claimant's discharge were the subject of markedly conflicting testimony. However, it appears to be undisputed that the claimant's respiratory infirmities including allergies and asthma caused him to be frequently absent from work; that he had been disciplined by means of suspension for absenteeism on at least three occasions prior to his discharge; that his final three absences were on July 8, 1980, July 14, 1980, and November 6, 1980; and that the claimant was discharged on November 14, 1980.

A document admitted into evidence and the subject of testimonial explanation indicates that the employer's rule applicable to absences was as follows:

Criteria for Habitual Absenteeism

A. An employee who fails to notify the company when absent for five (5) or more consecutive days will be considered as a voluntary quit.

B. If an employee is absent REPORTED OFF OR NOT REPORTED OFF, nine (9) times within a year, he will be discharged. The exceptions to this rule are:

1. An employee requests and has been granted a sick leave.

[ 70 Pa. Commw. Page 732]

. Bereavement.

3. Jury ...


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