Opinion
Argued December 8, 1980
January 22, 1981.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act of December 5, 1936 P.L. (1937) 2897 — Single violation — Failure to report absence.
1. A single violation by an employe of rules governing the reporting of absences can constitute wilful misconduct precluding the receipt of benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, when the employe is discharged as a result of such conduct, and the failure to report for work is not excused on the ground that the employer knew that he was required to be absent when no evidence indicates that the employer had or reasonably should have had such knowledge. [262]
Argued December 8, 1980, before Judges WILKINSON, JR., CRAIG and PALLADINO, sitting as a panel of three.
Appeal, No. 1980 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Plummer Askew, No. B-175100.
Application with the Bureau of Employment Security for unemployment compensation. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
David Freeman, for petitioner. Steven Marcuse, Assistant Attorney General, with him Richard Wagner, Assistant Attorney General, and Harvey Bartle, III, Acting Attorney General, for respondent.
In this unemployment compensation appeal, the claimant questions the board's affirmance of a referee's decision which denied compensation on the basis of the willful misconduct provision of the Unemployment Compensation Law.
Plummer Askew.
Unemployment Compensation Board of Review.
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).
The employer discharged claimant January 12, 1979 for being absent from work on January 9, 1980, without reporting off.
Claimant contends that his failure to report off on January 9, 1979 did not constitute an act of willful misconduct because he was visiting his parole officer, as his employer knew he was required to do on the second Tuesday of every month.
However, according to the record, the claimant testified that before January 9, 1979, he had not visited his parole officer for three months. That testimony, evidencing no actual pattern on which the employer could rely, precludes this court from deciding that the employer knew or should have known the reason for claimant's absence. Hence, the claimant's failure to report off cannot be excused.
QR: All right. Now the last absence I guess was the 9th, it was probation. Why did you have to go? What was the hurry you had that day? Why did you have . . .
AC: Because see, you have to report to them every so often. And that was the beginning of the month. The 9th . . . I mean I hadn't been to him for like 3 months.
. . . .
QR: How often did you have to report to
AC: Once a month.
QR: Well, why did you have to go on the 9th? Is that the only day?
AC: It's 2nd Tuesday of every month.
A single act of misconduct may constitute willful misconduct and preclude the receipt of unemployment compensation benefits. See Food Fair Stores, Inc. v. Unemployment Compensation Board of Review, 11 Pa. Commw. 535, 314 A.2d 528 (1974). Here the claimant's own testimony was sufficient to support the conclusion reached by the referee.
Where, as here, the party with the burden of proving willful misconduct prevails before the referee, our scope of review is limited to whether there is sufficient competent evidence to support the findings of fact. Brooks v. Unemployment Compensation Board of Review, 37 Pa. Commw. 6, 388 A.2d 799 (1978).
Accordingly, we affirm the decision of the board.
ORDER
AND NOW, January 22, 1981, the August 22, 1979 decision of the Unemployment Compensation Board of Review is hereby affirmed.