Opinion
Argued February 6, 1976
May 25, 1976.
Unemployment compensation — Burden of proof — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Question of law — Words and phrases — Wilful misconduct — Tardiness — Sufficiency of findings of fact.
1. The burden is upon the employer to prove that the discharge of an employe was for wilful misconduct rendering him ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [618-9]
2. Whether particular conduct constitutes wilful misconduct is a question of law subject to review by the Commonwealth Court of Pennsylvania in an unemployment compensation case. [619]
3. Wilful misconduct is the wanton or wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of reasonably expected behavior standards or negligence such as to manifest culpability, wrongful intent or evil design or show an intentional and substantial disregard of the employer's interest or the employe's duties and obligations to the employer. [619]
4. Habitual tardiness especially after warnings about such conduct can constitute wilful misconduct such that discharge therefor precludes the receipt of unemployment compensation benefits. [619]
5. When the Unemployment Compensation Board of Review fails to make specific findings on determinative issues raised in the proceedings making review of the legal determinations of the Board impossible, the case must be remanded by the reviewing court. [620]
Judge KRAMER did not participate in this decision.
Argued February 6, 1976, before Judges KRAMER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 1157 C.D. 1975, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Ramon Cardellino, No. B-126535.
Application to Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Decision of referee reversing award appealed by claimant to the Unemployment Compensation Board of Review. Benefits denied. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Appeal sustained. Case remanded.
Laurence D. Mass, for appellant.
Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Ramon Cardellino (claimant) has filed this appeal from a decision of the Unemployment Compensation Board of Review (Board), dated July 8, 1975, which affirmed the referee's denial of unemployment compensation benefits for willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law.
Section 402(e) of the Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e), provides inter alia, as follows:
"An employe shall be ineligible for compensation for any week —
. . . .
"(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . ."
The Board's decision contained the following "Findings of Fact":
"1. The claimant was last employed by Gulphwyn Corporation, Merion, Pennsylvania, as a Laborer for four months at $250 per week, and his last day of work was September 18, 1974.
"2. During the course of his employment, claimant was consistently late and received numerous warnings.
"3. On September 18, 1974, when claimant failed to heed the warnings of the employer and continued to be late, he was discharged."
In willful misconduct cases, the burden of establishing the claimant's ineligibility is placed upon the employer. Our scope of review is limited to questions of law and to a determination of whether or not the findings of the Board are supported by substantial evidence. The question as to whether or not a claimant's conduct constituted willful misconduct is, of course, one of law and subject to our review. Unemployment Compensation Board of Review v. Walton, 21 Pa. Commw. 47, 343 A.2d 70 (1975); Sturniolo v. Unemployment Compensation Board of Review, 19 Pa. Commw. 475, 338 A.2d 794 (1975). And, as we have held previously:
" 'Misconduct within the meaning of an unemployment compensation act excluding from its benefit an employee discharged for misconduct must be an act of wanton or wilful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employe or negligence in such degree or recurrence, as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or the employe's duties and obligations to the employer.' " Chambers v. Unemployment Compensation Board of Review, 13 Pa. Commw. 317, 319, 318 A.2d 422, 423 (1975). (Citations omitted.)
The Board concluded here that the "[c]laimant's conduct in reporting for work late, especially after receiving prior warnings, constitutes willful misconduct in connection with his work." Constant tardiness, of course, can constitute willful misconduct. Unemployment Compensation Board of Review v. Kerstetter, 21 Pa. Commw. 260, 344 A.2d 743 (1975). The Board's findings, however, that the claimant was warned about his lateness and was discharged when he persisted in being late to work thereafter does not detail with sufficient specificality the occurrence or occurrences of lateness which constituted the basis for the finding of willful misconduct. The employer's testimony in the record indicated that the claimant was a laborer, that his job started at 7:00 A.M. and that he had been late for work almost every day for over three months. The claimant testified, on the other hand, that he enjoyed a supervisory position, that he received a salary as opposed to hourly wages (thus supporting this position), that by agreement his job began when he arrived at work, normally between 7:30 A.M. and 7:45 A.M., and that he stayed late most nights, working more than forty hours each week. The Board has failed to make findings as to these and other matters in dispute. It is well established that this Court is bound by findings of the Board which are supported by substantial evidence, but we cannot infer findings which are not actually made.
In Walton, supra, 21 Pa. Commw. at 50, 343 A.2d at 72, we found that, as here,
"the Board's findings do not meet any of the issues raised by claimant that may be legally determinative of a conclusion of willful misconduct pursuant to Chambers, supra. Though findings need not always address themselves to all of the allegations and defenses raised by a claimant, the failure of the Board to address any of the factual issues raised by this claimant certainly makes it impossible to review a legal determination of willful misconduct."
We, therefore, issue the following
ORDER
AND NOW, this 25th day of May, 1976, the appeal by Ramon V. Cardellino is hereby sustained and this action shall be remanded to the Board for action and determinations consistent with the above opinion.
Judge KRAMER did not participate in this decision in this case.