Horvath v. Commonwealth

Opinion by Judge Bogeks, Julius Horvath appeals from an order of the Unemployment Compensation Board of Beview affirming a referee’s determination that he was ineligible for benefits because his unemployment was due to his discharge for willful misconduct under 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). We affirm. Mr. Horvath, who was last employed by the Albert Einstein Medical Center as a mechanic, was absent from work during the period of April 19, 1977 to April 28, 1977. He reported his intended absence on April 19 and 20, but was not in touch with his employer again until April 28 when he presented a doctor’s certificate stating that he had had an attack of gout. Claimant had been given three prior written warnings concerning his failure to notify his employer of absences. He was discharged from his employment for [422] failure to call in sick every day lie was to be absent— a requirement imposed by tbe employer in its handbook of rules given to Mr. Horvath. Tbe appellant contends that be was denied due process of law at tbe bearing because tbe referee failed to advise bim of bis right to counsel, of tbe nature of tbe proceedings, of tbe “relative burden of proof”1 or of tbe law in tbe field of unemployment compensation relating to excessive absenteeism. Similar arguments were considered and rejected in Gonzales v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 70, 395 A.2d 292 (1978). Neither considerations of due process nor regulations governing tbe conduct of bearings found at 34 Pa. Code §101.21 require tbe referee to assist claimants in a manner incompatible with tbe impartial discharge of tbe referee’s duties. After carefully reviewing tbe record, we discern no violation of tbe appellant’s constitutional rights or Department regulations. Tbe appellant’s further argument that willful misconduct was not proved is without merit. Its thesis is that an employee may not be denied compensation based on absenteeism caused by illness. Tbe claimant was not discharged for being ill or for being absent while ill. He was discharged for failing, with respect to at least five days of absence, to report off, as bis employer’s written rules provided bim required. Order affirmed. Order And Now, this 25th day of July, 1979, the order of the Hnemployment Compensation Board of Review, No. B-150747 dated November 4, 1977, is hereby affirmed. Footnotes [1] Appellant’s brief complains that the referee failed to advise the claimant that he was required to “develop a case demonstrating lack of willful misconduct.” Such advice would, of course, have been erroneous.