Miller
v. UCBR – Cmwlth. Court – October 9, 2015 –
order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1
order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1
Case
remanded where claimant was absent from work for two weeks during pre-trial
incarceration on charge of violation of his probation, where
- claimant, by his wife, gave
employer notice of the incarceration
- claimant was found not guilty of
having violated his probation
“Absenteeism
alone, while grounds for discharge, is not a sufficient basis for denial of
unemployment benefits. An additional element, such as lack of good cause for
absence, is necessary.” Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth.
1987). Factors that are considered in determining whether absenteeism
constitutes willful misconduct are: (1) excessive absences; (2) failure to
notify the employer in advance of the absence; (3) lack of good or adequate
cause for the absence; (4) disobedience of existing company rules, regulations,
or policies with regard to absenteeism; and (5) disregard of warnings regarding
absenteeism. Petty v. Unemployment Compensation Board of Review, 325
A.2d 642, 643 (Pa. Cmwlth. 1974).
The
predominate issue in this case . . ..is whether Claimant had good cause for the
absences so as to preclude or negate a finding of willful misconduct. See
Medina v. UCBR, 423 A.2d 469, 471 (Pa. Cmwlth. 1980). The concept of “good
cause” has been characterized as an action of the employee that is justifiable
or reasonable under all the circumstances. “Absence from work due to pre-trial
incarceration is not, itself, willful misconduct.” Bruce v. UCBR, 2 A.3d
667, 671 (Pa. Cmwlth. 2010) (citing Hawkins, 472 A.2d at 1192).
Pursuant
to Hawkins, Wertman, and Bruce, the dispositive issue in this
case is whether Claimant violated his probation. . . . The docket entries are
vague and do not demonstrate conclusively that Claimant was found not to have violated
the terms of his probation.
Here,
the Board disregarded Claimant’s testimony, determined for itself that Claimant
violated probation, and, in doing so, overlooked the critical fact that a
criminal trial court had already ruled on the probation case. Notably, the Board did not make any specific
credibility determination with respect to Claimant’s testimony that the
criminal trial court found that he did not violate the terms of his probation. Where
the Board fails to make necessary findings and credibility determinations, we
must remand to the Board.
Accordingly,
we vacate the Board’s order and remand for the Board to determine the
credibility of Claimant’s testimony that the criminal trial court found that he
did not violate his probation and for additional finding(s) based upon that
credibility determination. Because the outcome of the criminal trial court case
is absolutely vital to determining whether Claimant violated his probation, on
remand, the Board, on its own or on further remand to a referee, shall provide
Claimant with the opportunity to submit court documentation – e.g.,
a court order, a hearing transcript, etc. – to prove that the trial court found
that he did not violate probation. . . . .The Board shall then issue a new
decision that accounts for its credibility determination and additional
finding(s) of fact.
_______________________
Pa. R.A.P. 3716; 210 Pa. Code § 69.414 (a) Citing Judicial
Opinions. (a) Parties
may...cite an unreported panel decision of this court issued after January 15,
2008, for its persuasive value, but not as binding precedent.
