Wilson v. Commonwealth, Unemployment Compensation Board of Review

488 A.2d 664, 88 Pa. Commw. 91, 1985 Pa. Commw. LEXIS 867

• Court: Commonwealth Court of Pennsylvania
• Decided: March 5, 1985
• Docket: Appeal, No. 769 C.D. 1983
• Status: Published

Opinions

Opinion by

Judge MacPhail,

Shirley Wilson (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) denying unemployment compensation benefits on the ground that Claimant had been discharged for willful misconduct — excessive .tardiness.¹

Claimant was appointed as a biology teacher at Furness Junior High 'School (Furness) in Philadelphia on December 28, 1981, at which time she was pregnant. On January 5, 1982, Claimant received a letter from the principal noting that .she had only been on time for work once since she began at Furness, and reminding her that the hours for teachers were from 8:40 a.m. to 2:43 p.m.² For the remainder of the school year, Claimant was absent twenty-four (24) school days and tardy forty-nine (49) school days. As a result of her absenteeism and tardiness, Claimant was suspended from her employment.

Where the party with the burden of proof succeeds on the merits before the Board, as here, our scope of review is limited to a determination of whether substantial evidence exists in the record to support the Board’s findings and whether the Board committed any errors of law. Wright v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 278, 465 A.2d 1075 (1983). After a careful review of the record, we are satisfied that the Board’s findings are based on substantial evidence. Whether Claimant’s conduct rises to the level of willful misconduct is a question of law subject to this Court’s review. Blount v. Unemployment Compensation Board of Review, 77 Pa. Commonwealth Ct. 627, 466 A.2d 771 (1983).

Initially, Claimant contends that the Board’s finding of willful misconduct is not based upon substantial evidence because the employer did not show that Claimant intentionally and deliberately violated her employer’s rules. We have repeatedly held that a showing of actual intent to harm the employer is not required; conscious indifference to employment duties is enough to support a finding of willful misconduct. Cullison v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 416, 444 A.2d 1330 (1982).

Claimant next contends that her absences were beyond her control in that they resulted from physical complications from her pregnancy and that the extent of her latenesses were not “fully developed” and could not rise to the level of willful misconduct. Because of our disposition of the tardiness issue, we need not address the issue of Claimant’s absences. Conibear v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 264, 463 A.2d 1231 (1983).

Claimant admits being tardy and does not dispute that that occurred forty-nine (49) times in six (6) months. An employer has the right to expect that his employees will attend work when they are scheduled and that they will be on time. Fritz v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 492, 446 A.2d 330 (1982). We have repeatedly held that chronic tardiness is adequate grounds for a finding of willful misconduct. Cipriani v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 34, 466 A.2d 1102 (1983). Claimant here has been tardy forty-nine (49) times since she was hired; such behavior is inimical to her employer’s interest and rises to the level of willful misconduct. Fritz.3

Claimant has sought to justify the tardiness. The Board found her evidence insufficient in that respect; specifically, the Board found that her tardiness was not due to her pregnancy. This is a factual finding we may not disturb. Solomon v. Unemployment Compensation Board of Review, 75 Pa. Commonwealth Ct. 400, 461 A.2d 1349 (1983).

Accordingly, we affirm.

Order

The order of the Unemployment Compensation Board of Review, No. B-215400, dated March 1, 1983, is affirmed.

This decision was reached prior to the resignation of Judge Williams, Jr.

1 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).

2 Claimant objected to the receipt of this letter into evidence, as it was not on official stationary. However, Claimant admitted that she had read the letter and understood it.

3 As in Fritz, Claimant had a chronic absentee problem in addition to her tardiness.