Appeal from PETITION FOR REVIEW.
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.
[ 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) ...