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KENNETH SCOTT NEIMAN v. COMMONWEALTH PENNSYLVANIA (06/12/87)

decided: June 12, 1987.

KENNETH SCOTT NEIMAN, 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 Kenneth Scott Neiman, No. B-243354.

COUNSEL

Scott F. Breidenbach, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Paul E. Baker, Acting Deputy Chief Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 106 Pa. Commw. Page 589]

This is an appeal by Kenneth Scott Neiman, claimant, from an order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits on the basis that claimant was guilty of willful misconduct under 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. § 802(e).

[ 106 Pa. Commw. Page 590]

Claimant was employed as a security guard for Yoh Security Inc., employer. He was discharged after reporting over one hour late to a scheduled training session. The record shows that claimant had worked the previous night and attended an early morning physical examination required by the company after which he fell asleep. He slept beyond the training session which was scheduled later that day. The record also shows that claimant had a history of absences and tardiness. Claimant filed a claim with the Office of Employment Security (OES) which denied benefits on the basis that claimant had violated company work rules against absences and tardiness and thus was ineligible for benefits due to willful misconduct. The referee affirmed the OES but for a different reason:

The claimant had a history of tardiness, about which he had been warned and suspended. The record reveals that further disciplinary action following the suspension, did not specifically follow the employer's stated schedule in reference thereto concerning a dismissal as a result of continued tardiness. However, in the instant case, the claimant was dismissed for not following the direct order to attend a necessary training session, which was required because the claimant had not previously met the necessary qualifications to continue to perform his duties.

Our scope of review in unemployment compensation cases is limited to determining whether the findings of fact are supported by substantial evidence, whether an error of law was committed or constitutional rights were violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The OES ruled that claimant was guilty of violating work rules which govern lateness and tardiness. Before the referee, the employer attempted to present evidence

[ 106 Pa. Commw. Page 591]

    that claimant was in violation of work rule "A-12" by failing to comply with a direct order of a supervisor. The order to which the employer referred was supposedly given by claimant's superior, Captain Mark Burner, which directed claimant to report on time to a scheduled training session. Claimant objected at the hearing because this was not a reason upon which the OES based its determination. The referee noted claimant's objection then permitted employer to proceed. The referee then sustained claimant's objection to the hearsay nature of the evidence offered by employer to prove a violation of work Rule A-12. However, the referee affirmed the OES on the basis that claimant had ...


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