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decided: October 12, 1989.




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) whether an absence reported to a third party excuses willful misconduct.

Claimant relies on Hawkins v. Unemployment Compensation Board of Review, 81 Pa. Commonwealth Ct. 114, 472 A.2d 1191 (1984) for the proposition that pre-trial incarceration resulting in absence is not willful misconduct. Claimant's reliance on Hawkins is misplaced.

In Hawkins, the Board made a finding that the claimant's absence was reported to the employer. We have no such finding of fact here.

Here, the Board disqualified Claimant with the following language:

[T]he employer discharged claimant once claimant reached the requisite number of chargeable absences which would result in discharge. There is not sufficient evidence in the record to show that claimant contacted the employer to report off from work and to inform the employer of claimant's incarceration . . . .

Board Opinion at 2.

This case is controlled by Masko v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 296,

[ 129 Pa. Commw. Page 113447]

A.2d 328 (1982) where a claimant was incarcerated pre-trial pending the posting of bond. The Board found that because the claimant missed work and failed to notify the employer, the absence constituted willful misconduct as a matter of law. Here, the Board determined that Claimant failed to notify Employer and Claimant missed work because of incarceration while failing to post bond. On these facts, the instant case is indistinguishable from Masko. Therefore, Claimant's absence was willful misconduct.

Claimant next argues that the Board improperly relied upon the failure to give notice because it was not cited by Employer as a reason for the discharge. Claimant was discharged for excessive chargeable absences. Notice to Employer is an element included to determine if an absence is chargeable.*fn5 Claimant violated a reasonable work rule which required notice to Employer of absences. Without notice, the absence became chargeable. After Claimant accumulated a certain number of chargeable absences, he was properly discharged. Therefore, the Board did not rely on grounds for dismissal that Employer did not assert.

Finally, on the issue of notice to Employer through a third party: the Board found that Claimant informed a union representative of his incarceration but Employer's absenteeism policy requires that the employee shall notify his supervisor. (See footnote 5) Therefore, this argument is meritless.

Accordingly, the order of the Board is affirmed.


AND NOW, October 12, 1989, the order of the Unemployment Compensation Board of Review in the above-captioned case is affirmed.


Accordingly, the order of the Board is affirmed.

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