Karpowich v. UCBR - Cmwlth Court - May 19, 2010 - unreported memorandum opinion http://www.pacourts.us/OpPosting/Cwealth/out/2242CD09_5-19-10.pdfGrant of benefits upheld for claimant whose employer cursed at him on numerous occasions.An employee who is subject to unjust accusations, abusive conduct or profanity at the workplace has adequate justification to terminate employment and avoid disqualification provided notice of the conduct has been given to the employer. Moskovitz v. UCBR, 635 A.2d 723 (Pa. Comwlth. 1993), citing Forty v. UCBR, 447 A.2d 1078 (Pa. Cmwlth. 1982); Willet v. UCBR, 429 A.2d 1282 (Pa. Cmwlth. 1981). If the employer is already aware of the problem, notice may not be required. Danner v. UCBR, 443 A.2d 1211 (Pa. Comwlth. 1982).
Bruce v. UCBR - Cmwlth Court - May 19, 2010 (2-1) http://www.pacourts.us/OpPosting/Cwealth/out/2227CD09_8-9-10.pdfClaimant was found ineligible for violating the employer's no call/no show policy, relating to her failure to call because of an arrest, in which she subsequently was admitted to an ARD program. In order to determine whether her incarceration constituted good cause for not calling in, the Board looked at whether Claimant’s incarceration was through no fault of her own. The Board conceded that, if on remand, Claimant had put forth evidence that “she had been acquitted of the charges,” Claimant’s incarceration, and her subsequent inability to call off from work, would have resulted through no fault of her own, and, as such, “benefits could not be denied” because her failure to call off would constitute good cause. Still, it found that she had committed willful misconduct, in spite of the ARD disposition.
But in the course of the court opinion, it stated that: " Where a claimant is discharged for a criminal act, such as theft, the subsequent acceptance into an ARD program is insufficient proof of willful misconduct. UCBR v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977)."DissentThe dissent argued that the "question is whether Claimant’s incarceration constitutes good cause for her failing to call off work. As the majority states, the Board concedes that, if Claimant had been acquitted of the charges, the Board would have found that her incarceration was through no fault of her own and would have concluded thatClaimant had good cause for violating Employer’s policy and could not be denied benefits. However, because Claimant entered into the ARD program, the Board found that Claimant’s incarceration was her own fault, i.e., that Claimant was guilty of the charges against her. In my view, the Board’s finding lacks support in the law governing ARD and cannot stand.Because the Board has conceded that Claimant would be entitled to benefits had she been acquitted, because the Rules governing ARD provide that its successful completion results in the dismissal of charges, because the courts have recognized that entrance into the ARD program is not necessarily a confession of guilt and because the courts have likened ARD to acquittal, I would reverse.
