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SHIRLEY WILSON v. COMMONWEALTH PENNSYLVANIA (03/05/85)

decided: March 5, 1985.

SHIRLEY WILSON, 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 Shirley Wilson, No. B-215400.

COUNSEL

Michelle R. Terry, for petitioner.

Charles D. Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr. Dissenting Opinion by Judge Barry.

Author: Macphail

[ 88 Pa. Commw. Page 92]

Shirley Wilson (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits on the ground that Claimant had been discharged for willful misconduct -- excessive tardiness.*fn1

Claimant was appointed as a biology teacher at Furness Junior High School (Furness) in Philadelphia on December 28, 1981, at which time she was pregnant. On January 5, 1982, Claimant received a letter from the principal noting that she had only been on time for work once since she began at Furness, and reminding her that the hours for teachers were from

[ 88 Pa. Commw. Page 938]

:40 a.m. to 2:43 p.m.*fn2 For the remainder of the school year, Claimant was absent twenty-four (24) school days and tardy forty-nine (49) school days. As a result of her absenteeism and tardiness, Claimant was suspended from her employment.

Where the party with the burden of proof succeeds on the merits before the Board, as here, our scope of review is limited to a determination of whether substantial evidence exists in the record to support the Board's findings and whether the Board committed any errors of law. Wright v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 278, 465 A.2d 1075 (1983). After a careful review of the record, we are satisfied that the Board's findings are based on substantial evidence. Whether Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Blount v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 627, 466 A.2d 771 (1983).

Initially, Claimant contends that the Board's finding of willful misconduct is not based upon substantial evidence because the employer did not show that Claimant intentionally and deliberately violated her employer's rules. We have repeatedly held that a showing of actual intent to harm the employer is not required; conscious indifference to employment duties is enough to support a finding of willful misconduct. Cullison v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 416, 444 A.2d 1330 (1982).

Claimant next contends that her absences were beyond her control in that they resulted from physical complications from ...


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