Dulgerian v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 01 February 1982
• Citation: 439 A.2d 1342,64 Pa.Cmwlth. 342
• Parties: Jeannine DULGERIAN, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1342

439 A.2d 1342

64 Pa.Cmwlth. 342

Jeannine DULGERIAN, Petitioner, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION

BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued Nov. 20, 1981.

Decided Feb. 1, 1982.

Philip L. Blackman, Abramson & Freedman, Philadelphia, for petitioner.

Michael D. Klein, Richard L. Cole, Jr., Charles G. Hasson, Richard Wagner, Gen. Counsel, Unemployment Compensation Bd. of Review, Harrisburg, for respondent.

Before ROGERS, BLATT and CRAIG, JJ.

OPINION

BLATT, Judge:

The petitioner, Jeannine Dulgerian, appeals a decision of the Unemployment Compensation Board of Review (Board) which denied her unemployment benefits on the grounds that she was discharged for willful misconduct. The Board cited 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 petitioner who was employed as a dental assistant, was discharged from her employment on June 17, 1980. Her claim for benefits was denied by the Office of Employment Security and, after a hearing, a referee affirmed that denial. In response to the petitioner's request for reconsideration, the Board directed that another hearing be held at which additional testimony was taken, and the Board thereafter upheld the referee's denial of benefits. The instant petition for review followed.

The following facts as found by the Board are supported by substantial evidence ¹: (1) the petitioner had history of tardiness; (2) some of her tardiness was authorized but she was tardy in excess of the amount of time authorized; (3) on June 13, 1980, she did not report back to work after lunch and did not notify her employer that she would not be returning; (4) her failure to provide such notification was allegedly caused by anxiety resulting from a diagnosis by her dermatologist; (5) on her next scheduled working day, June 17, she did not report to work until after lunch, although she did notify her employer that morning that she would be late due to a doctor's appointment; and (6) her discharge was due to her unacceptable attendance habits.

The petitioner argues that her discharge on was based solely upon her tardiness on that particular day, that such tardiness was authorized and that therefore she was not guilty of willful misconduct. Alternatively she asserts that, even if her discharge was related to her June 13 failure to notify her employer of the reason for her absence, such behavior was not willful misconduct because the employer had no rule requiring such notification. Additionally, she claims that she had good cause for her lack of notification from the anxiety which she suffered after being informed by her dermatologist that she might have skin cancer.

The petitioner's first argument essentially disputes the validity of the Board's finding that she was discharged because of her poor attendance habits. There was conflicting evidence as to whether the petitioner's discharge was influenced by her past history of tardiness or was due solely to her authorized absence on June 17, but it is the role of the Board, not this Court, to resolve such conflicts and where, as here, its findings are supported by substantial evidence, we will not disturb them. Fritzo; Maxwell v. Unemployment Compensation Board of Review, 54 Pa.Commonwealth Ct. 604, 423 A.2d 430 (1980).

Secondly, she notes that the Board in its discussion stated that the petitioner's failure to notify...