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THOMAS WIDEMAN v. COMMONWEALTH PENNSYLVANIA (02/20/86)

decided: February 20, 1986.

THOMAS WIDEMAN, 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 In Re: Claim of Thomas Wideman, No. B-221264-B.

COUNSEL

Andrew F. Erba, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with him, James K. Bradley, Associate Counsel, for respondent.

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 95 Pa. Commw. Page 219]

Thomas Wideman (claimant) appeals from a denial of unemployment compensation benefits by the Unemployment Compensation Board of Review (Board) on the grounds of willful misconduct and violation of Section 402(e) of the Unemployment Compensation Law (Act).*fn1 The Board in this case

[ 95 Pa. Commw. Page 220]

    reversed the referee's award of benefits and made new findings of fact.

Claimant was employed by the Pennsylvania Liquor Control Board (LCB) for seven (7) years, until January 28, 1983, when he was terminated for excessive tardiness. Claimant was late on four occasions in 1982; August 9, November 11, December 6, and December 11. Each tardiness was called in, and reasons given at the time, ranging from waiting for a landlord to repair a lock (August 9) to not having bus fare and having to walk (November 11), to difficulties with the transit line (December 6, December 11). A period of nearly fifty (50) days elapsed between the alleged misconduct, e.g., claimant's last tardiness, and his ultimate termination.

The record indicates that claimant was discharged in part because of a prior history of tardiness for which he had received five (5) reprimand letters and five (5) suspensions, each progressively more severe,*fn2 the most recent being a five-day suspension in February of 1982, for an unreported lateness in late 1981. In terms of warnings, claimant received a letter in February of 1982, warning him against similar conduct, but which did not specify the putative sanctions, stating only that he would be subject to further discipline if he was late and failed to call in. Also, a new supervisor came on board in November of 1982, and warned all of the employees in the store where claimant worked that lateness would be reported promptly to Harrisburg.

The burden of proving willful misconduct is upon the employer. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). Where the party with the burden of

[ 95 Pa. Commw. Page 221]

    proof prevails before the Board, our scope of review is limited to determining whether substantial evidence supports the Board's necessary findings of fact or whether an error of law was committed. Dempsey v. Unemployment Compensation ...


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