American Process Lettering, Inc. v. Commonwealth

412 A.2d 1123, 50 Pa. Commw. 272, 1980 Pa. Commw. LEXIS 1262
CourtCommonwealth Court of Pennsylvania
DecidedMarch 26, 1980
DocketAppeal, No. 2585 C.D. 1978
StatusPublished
Cited by22 cases

This text of 412 A.2d 1123 (American Process Lettering, Inc. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Process Lettering, Inc. v. Commonwealth, 412 A.2d 1123, 50 Pa. Commw. 272, 1980 Pa. Commw. LEXIS 1262 (Pa. Ct. App. 1980).

Opinion

Opinion by

Judge MagPhail,

American Process Lettering, Inc. (Employer) appeals a determination by the Unemployment Compensation Board of Review (Board) which granted Richard P. Mahoney (Claimant) unemployment compensation benefits. The Board reversed the decision of the referee which had declared Claimant ineligible for benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(6).1

The Board found as facts that Claimant was employed for approximately three years as a silk screen printer at a final hourly rate of $4.50 and that Claimant was discharged on April 27, 1978, on which date he was two minutes late for work. The Board determined further that prior to Claimant’s last day of work he had been late “on occasion” an average of three minutes and that after Claimant was warned about his tardiness, his attendance record improved. The referee’s pertinent findings were that during the course of his employment, the Claimant incurred “frequent latenesses” and that the Claimant was warned by his Employer that if he continued to be tardy, he would be fired.

On the basis of its findings of fact, the Board concluded that Claimant’s occasional tardiness did not materially interfere with Employer’s best interests. Therefore, the Board found that Claimant’s behavior did not constitute willful misconduct under Section [275]*275402(e) of the Law. Accordingly, the Board granted benefits.

Employer presents the following two issues to us on appeal: (1) whether employee’s actions constitute willful misconduct is a question of law to be resolved by the reviewing court and (2) whether an employee who is chronically tardy or absent is guilty of willful misconduct, thus rendering him ineligible for unemployment compensation benefits. In regard to the latter issue, since the Board only made findings that Claimant was discharged for tardiness, we will not address the question of whether chronic absences makes one guilty of willful misconduct.

Since the Employer had the burden of proving willful misconduct on the part of Claimant, and did not prevail before the Board, “our scope of review is limited to a determination of whether the Board’s findings of fact can be sustained without a capricious disregard of competent evidence.” Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 238, 241, 397 A.2d 42, 44 (1979). Thus the real issue involved here is whether the Board’s finding of “occasional lateness,” which did not amount to willful misconduct, can be sustained without a disregard of competent evidence.

We hold that a finding of “occasional lateness” cannot be sustained without a disregard of the evidence of Claimant’s time cards from which the Employer’s representative testified that Claimant was tardy approximately twenty-four times in a twelve week period. Nor can such a finding be sustained without disregard for Claimant’s testimony that he was late about six or seven times each month in 1978 prior to his discharge. Such evidence manifests tardiness which is habitual, and more than just occasional.

We find that Claimant’s habitual tardiness does constitute willful misconduct. Although the phrase [276]*276“willful misconduct” is not defined in the statute, our Court has consistently interpreted willful misconduct as

‘... 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.’ (Emphasis deleted.)

Unemployment Compensation Board of Review v. Walton, 21 Pa. Commonwealth Ct. 47, 49, 343 A.2d 70, 71 (1975).

Habitual or excessive tardiness consistently has been held to constitute willful misconduct, which renders employees ineligible for benefits under Section 402(e) of the Law. This Court in Unemployment Compensation Board of Review v. Schmid, 20 Pa. Commonwealth Ct. 286, 289, 341 A.2d 553, 555 (1975), stated that in most instances constant tardiness would clearly fall within “wanton and wilful disregard of the employer’s interest,” or “the disregard of standards of behavior which an employer can rightfully expect from his employee,” two of the four categories within the definition of willful misconduct as defined in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). To be guilty of willful misconduct, an employee need not intend to wrong the employer. A “conclusion of ‘wilful misconduct’ may be based on a finding of a conscious indifference to the duty owed the employer.” Smith v. Unemployment Compensation Board of Review, 28 Pa. [277]*277Commonwealth Ct. 98, 101, 367 A.2d 811, 812 (1977). In Unemployment Compensation Board of Review v. Glenn, 23 Pa. Commonwealth Ct. 240, 244, 350 A.2d 890, 892 (1976), this Court held that “ [h]abitual tardiness, particularly after warnings that a termination of services may result if the practice continues, is sufficient evidence of an employee’s disregard of the employer’s interest to sustain a finding of willful misconduct.” As in numerous other decisions, our Court affirmed the above conclusion of law in Bowers v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 171, 392 A.2d 890 (1978). Therein the Court determined that the claimant’s habitual tardiness — consisting of twelve occasions of tardiness within a period of four months — was sufficient grounds for a finding of willful misconduct.

An advance warning* is not a precondition or prerequisite to a discharge for willful misconduct. Hartley v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 371, 397 A.2d 477 (1979). Though not a necessary element, a warning is relevant in that it reflects the employee’s attitude toward his employment, Hohnstock Unemployment Compensation Case, 196 Pa. Superior Ct. 500, 175 A.2d 167 (1961), and thus adds to the willfulness of the misconduct. Dunlap v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 474, 366 A.2d 618 (1976).

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Bluebook (online)
412 A.2d 1123, 50 Pa. Commw. 272, 1980 Pa. Commw. LEXIS 1262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-process-lettering-inc-v-commonwealth-pacommwct-1980.