IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Comadena, Petitioner
v.
Unemployment Compensation Board of Review,
Respondent
No. 737 C.D. 2004
Submitted: August 13, 2004 :
BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE FRIEDMAN
FILED: October 18, 2004
Thomas Comadena (Cla imant) petitions for review of the March 10, 2004,
order of the Unemployment Compensation Board of Review (UCBR), which
affirmed a referee's determ ination that Claimant is ineligible for
compensation under Section 402(e) of the Unemployment Compensation Law.
We affirm.
Claimant was employed by Whee ling Pittsburgh Steel (Employer) for forty
years and last worked as a tractor driver. On February 27, 2002, Claimant
signed a Last Chance Agreement, acknowle dging that failure to maintain an
exemplary attendance record would re sult in his immediate discharge from
employment. (R.R. at 3-4.) On February 13, 2003, having accumulated numerous
additional absences, Clai mant met wit h Em ployer's superintendent of hum an
resources. Clai mant was informed that he m ust report off only t o his
supervisor, disclose the nature of his absence a nd provi de medical
documentation for any absence d ue to illness. Claimant also was placed
on notice that his job was in jeopardy. (UCBR's Findings of Fact, Nos. 1-7.)
Thereafter, Claimant reported off work on February 18 th and March 12th,
15 th, 30 th and 31 st, and he failed to provi de medical documentation
for the dates he called off sick. On April 7, 2 003, Claimant called off
work to await a plumber. (UCBR's Findings of Fact, Nos. 8-10.)
On April 11, 2003, Em ployer placed Claimant on suspension status for
five days pendi ng an investigation. Employer and Claimant 's union
scheduled two hearings t o i nvestigate and address Cl aimant's
violation of the Last Chance Agreement. Th e record does not
establis h that Clai mant recei ved notice of these hearings, and he
did not appear at either proceeding. (UCBR's Findings of Fact, Nos. 11-13.)
Thereafter, Em ployer disc harged Clai mant for absenteeis m in
violation of the terms of his Last Chance Agreement. (UCBR's Findings
of Fact, No. 15.) By letter dated May 2, 2003, Clai mant was advised
that, "Your failure t o appear [at the hearings] has resulted in
your suspension being converted into a discharge effective May 1,
2003." (R.R. at 1.)
The local job center determined that Claimant was eligible for benefits,
and Em ployer appealed. At a hearing before t he referee, Em ployer
presented the testim ony of Sam uel J. D'Accione, superintendent of
human relations. In perti nent part, D'Accione tes tified that Claimant
missed work at least eleven times in the eleven mon ths after he signed
the Last Chance Agr eement and accumulated eight unexcused absences
after the February 13, 2003, meeting. (N.T. at 5-7.) While Claimant's
counsel sugg ested that Em ployer actually discharged Claimant for his
failure to attend the hear ings, D'Accione repeatedly stated that
Claimant was discharged for e xcessive absenteeism in violation of t he
terms of the Last Chance Agreement. (N.T. at 9-14.) Claimant
testified that he understood the discharge letter as stating he was
fired for failing to attend the hearings on hi s suspension, and
Claimant stated that he did not receiv e notice of either h earing.
With respect t o specific absences, Claimant testified as follows:
I never reported off just pe rsonal busi ness. I say like
snow fall 30 inches, funeral leav e, stuff like that. I never
just call off and say personal business. I don't m iss all
those days. I didn't m iss all those tim es. I m issed one
week sick. One week that's all. I reported off every day that
I was sick. Th e rest of the times, it was like I told you,
30 inches of snow and I couldn't get out of my back street,
they didn't plow until the second day. My Aunt Jerry died.
You get three days funeral leave, that's in the contract rules.
I took 4 days because s he was real clos e to me. And my wife
is on eye medication and sometimes I have to take off work because
of her because she gets, like, dizzy. We have nobody for her
to be home with. We are alone. We don't have anybody. So I have
to take off for her too. Then the plumber came and I had to
take off for him.
(N.T. at 18.)
Following the hearing, the refe ree concluded that Claimant's
excessive absenteeism rose to the level of willful m isconduct and
reversed the job center's deter mination. Clai mant appeal ed, and
th e UCBR affirmed the refer ee's decision that Claimant's absenteeism
c onstituted willful m isconduct. The UCB R determined that Claimant
offered no justification for failing to provide the requisite medical
documentation and offered no testim ony suggesting that there was an
emergency situation requiring Claimant to stay home to await a plumber.
On appeal to this court, 3 Clai mant argues that the UCBR erred in
determining that Em ployer discharged Cl aimant due to unexcused absences.
Noting that Em ployer's May 2003 term ination letter contains no reference
to absenteeism, Clai mant asserts that the real reason Em ployer fired him
was his failure to appear at the April 2003 hearings on his suspension.
After careful review of the record, however, we conclude that the testimony
of Em ployer's witness supports t he UCBR's finding t hat Em ployer
discharged Claimant for absenteeism in violation of the Last Chance Agreement.
Accordingly, we affirm.
_____________________________ ROCHELLE S. FRIEDMAN, Judge