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WALTER ANDERSON v. COMMONWEALTH PENNSYLVANIA (10/12/89)

decided: October 12, 1989.

WALTER ANDERSON, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from PETITION FOR REVIEW.

COUNSEL

John Stember, Lionel C. Fedel, Neighborhood Legal Services Assoc., Pittsburgh, for petitioner.

Notice of non-participation filed by respondent.

Glenn M. Olcerst, Marcus & Shapira, Pittsburgh, (Notice of Intervention), for OK Grocery Co.

Crumlish, Jr., President Judge, and Palladino, (p.) and Smith, JJ. Crumlish, Jr., President Judge, dissents.

Author: Palladino

[ 129 Pa. Commw. Page 111]

Walter Anderson*fn1 (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which denied his claim for benefits pursuant to Section 402(e) of the Unemployment Compensation Law.*fn2 We affirm.

OK Grocery Company (Employer) employed Claimant as a warehouseman. Employer had a progressive disciplinary policy where an employee could be terminated for an accumulation of chargeable absences. Claimant had accumulated a number of chargeable absences that resulted in warnings and a suspension.

On or about March 1, 1988, Claimant was arrested as a result of a domestic dispute and incarcerated for 45 days pending trial. Six days of his pre-trial incarceration, combined with his prior chargeable absences, resulted in Claimant's discharge because he exceeded the absence limit.

The Office of Employment Security (OES) denied benefits, and on appeal, a referee reversed the determination of OES and granted Claimant benefits. Employer appealed to

[ 129 Pa. Commw. Page 112]

    the Board, which concluded that Claimant had engaged in willful misconduct*fn3 and reversed the award of benefits. Claimant filed a timely appeal with this court.*fn4

Claimant raises three issues on appeal: 1) whether absence from work because of pre-trial incarceration is sufficient to establish willful misconduct; 2) whether conduct unrelated to Employer's decision to discharge may be the basis for denial of benefits; and 3) ...


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