DocketNumber: Appeal, No. 330 C.D. 1976
Citation Numbers: 29 Pa. Commw. 5
Judges: Blatt, Crumlish, Crumlxsh, Menoer
Filed Date: 3/1/1977
Status: Precedential
Modified Date: 6/24/2022
Opinion by
James A. Beck, Jr. (Claimant) appeals the order of the Unemployment Compensation Board of Review (Board) affirming the referee’s denial of benefits based upon excessive absenteeism (willful misconduct) within the meaning of Section 402(e) of the Unemployment Compensation Law, Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). We affirm.
The facts as found by the Board are as follows. Claimant was last employed by R. J. Fitzmyer of Philadelphia for two years as a shipper and receiver at $165.00 per week. His last day of work for Fitzmyer was January 17, 1975. Claimant’s scheduled hours of work were 8:30 A.M. to 5:00 P.M., Monday through Friday. It was further found by the Board that during the course of his employment, Claimant had a history of excessive absenteeism as well as tardiness and that Claimant had been warned in the past concerning same. On January 20, 1975, Claimant did
The law is well settled that unexcused absenteeism and tardiness will furnish an employer the requisite reason for a discharge which results in a consequent denial of benefits. In Pettey v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 157, 325 A.2d 642 (1974), Judge Wilkinson enunciated the general rule with regard to absenteeism and tardiness as follows:
An analysis of the recent cases in which this Court has affirmed the Board’s conclusion that absenteeism could be considered wilful misconduct establishes that in every instance there was much more than appears in this record. These additional elements were accurately summarized in the able brief of appellant-claimant as follows:
*8 ‘ 1. Excessive- absences.
‘2. Failure to notify tbe employer in advance of tbe absence.
‘3. Lack of good or adequate cause for tbe absence.
‘4. Disobedience of existing company rules, regulations, or policy with regard to absenteeism.
‘5. Disregard of warnings regarding absenteeism.’ See Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 309 A.2d 72 (1973), where Judge Mencbb assembles the cases.
15 Pa. Commonwealth Ct. at 159-60, 325 A.2d at 643.
Most certainly, the conduct exhibited by Claimant comes within the dictates enunciated in Pettey, and we recognize that there is testimony in the record contradicting evidence relied upon by the fact-finder in entering the respective findings of fact, but the short of this argument is that the fact-finder chose to believe the employer’s version of the absences and excuses proffered in justification of those absences. It is not for this Court to reverse such a ¡determination. "We hold that the employer has met its burden of proof as to willful misconduct mandated by Pettey, supra, and Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 98, 309 A.2d 165, 169 (1973), and subsequent decisions of this Court.
Accordingly, we
Obdeb
And Now, this 1st day of March, 1977, the order of the Unemployment Compensation Board of Review is hereby affirmed.