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KENNETH IRVINE v. COMMONWEALTH PENNSYLVANIA (01/11/84)

decided: January 11, 1984.

KENNETH IRVINE, 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 Kenneth C. Irvine, No. B-198392.

COUNSEL

Lenore M. Urbano, with her Leland Q. Towns, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge Barbieri.

Author: Doyle

[ 79 Pa. Commw. Page 498]

This is an appeal by Kenneth C. Irvine (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Claimant was employed as a dryer operator for Keystone Filler & Manufacturing Company (Keystone) for approximately two years. On January 27, 1981, he was discharged by Keystone for failure to report to work on the previous day and failure to phone in to report his absence. The Office of Employment Security (OES) denied Claimant's request for benefits and, following a hearing, a referee affirmed. On appeal to the Board, the denial of benefits was upheld. Appeal to this Court followed.

[ 79 Pa. Commw. Page 499]

Failure to report to work or to report the reasons for a claimant's absence may constitute willful misconduct under Section 402(e) of the Law. Azar v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 23, 382 A.2d 995 (1978). The record in this case shows that Claimant had been warned in the past for failure to show up for work or phone in the reason for his absence. It is undisputed that Claimant did not report for work on the day before he was discharged and did not phone in.

Claimant urges, however, that the record shows that his absence was unavoidable and that Keystone had ample notice that he would not be in, so that his failure to phone in did not rise to the level of willful misconduct. See Penn Photomounts, Inc. v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 407, 417 A.2d 1311 (1980). He urges that his employer knew that he regularly rode with fellow employees and had been informed by those employees that they were unable to get to work because of a heavy snowstorm, and employer knew also that Claimant had no phone in his home. Claimant testified additionally that he was unable to leave his house to get to a phone because his nineteen month old baby was sick.

In Penn Photomounts we held that an employee could rely on less formal notice of reporting an absence than the employer ordinarily required if it could be shown in the record that the employer had accepted such notice as sufficient in the past. In Penn Photomounts the claimant demonstrated that the procedure she followed in reporting absences to her department instead of the main office was also generally followed by her co-workers. The Board also found that she had never been reprimanded for reporting her absences in this matter. In the instant case, Claimant was reprimanded for failure to report in, and there is no indication

[ 79 Pa. Commw. Page 500]

    in the record that other employees were excused from the obligation to phone in absences.*fn1 And unlike the claimant in Penn Photomounts, he did not pursue another reporting procedure, but relied on an inference from the inability of his co-workers to get to work to give notice to Keystone that he would also not be ...


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