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Kantner v. Unemployment Compensation Board of Review1/8/2003
Curt C. Kantner (Claimant) appeals, without counsel, from an order of the Unemployment Compensation Board of Review (Board) denying him benefits under Section 402(e) of the Unemployment Compensation Law (Law). We affirm.
The Board adopted the referee's findings of fact which reveal the following. Claimant was employed as an assembler with Premier Mill Corporation (Employer) for thirteen and a half years and was scheduled to work on Monday and Tuesday, January 28 and 29, 2002, before beginning a pre-approved week of vacation on January 30, 2002. Claimant was incarcerated in Berks County Prison following the completion of his shift on January 25, 2002, because he tested positive on a drug/alcohol test required by a prior DUI conviction, for which he was on parole. Claimant did not challenge the validity of the drug/alcohol test. Claimant remained in Berks County Prison until April 8, 2002, and, consequently, was unable to report for work on January 28 and 29 as well as after his vacation on February 5. Though Employer did receive word from Claimant that he was detained, at that time there was uncertainty as to how long it would be until Claimant could report to work. Employer reassigned Claimant's job responsibilities to others and terminated Claimant's employment effective February 5.
In this appeal, Claimant raises several issues. First, he questions the Board's finding that he did not challenge the validity of the drug/alcohol test. Claimant alleges that finding is not supported by substantial evidence. Claimant also contends he challenged the drug/alcohol test but that his probation officer decided against him.
A parole violation hearing requires notice, an opportunity to be heard by a judge, and assistance of counsel. See Commonwealth v. Sims, 770 A.2d 346 (Pa. Super. 2001); Commonwealth v. Maye, 411 A.2d 783 (Pa. Super. 1979); Pa. R. Crim. P. 708. Offenders on county parole cannot be re-confined for several months without opportunity for such a hearing. Thus, Claimant's suggestion that he was never afforded an opportunity to contest the results of a urine test lacks merit.
Also, the Referee's finding is supported in the record. See Notes of Testimony (N.T.) at 7. Before the referee, Claimant did not contend the test was erroneous, nor did he deny the use of the substance that resulted in the positive test. His failure to deny use of a prohibited substance can be considered an admission. L. Washington & Assoc., Inc. v. Unemployment Comp. Bd. of Review, 662 A.2d 1148 (Pa. Cmwlth. 1995).
"It is now axiomatic in an unemployment compensation case, that findings of fact made by the Board, or by the referee as the case may be, are conclusive on appeal so long as the record, taken as a whole, contains substantial evidence to support those findings." Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). This Court is bound to "examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony, to see if substantial evidence for the Board's conclusion exists." Id. The referee's finding, adopted by the Board, is supported by substantial evidence and is conclusive on appeal.
Next, Claimant charges the absences caused by his incarceration were through no fault of his own and, consequently, that he did not abandon his job. Claimant concludes the Board's determination that his excessive absenteeism without good cause constituted willful misconduct was erroneous.
Whether an employee's actions constitute willful misconduct is a question of law reviewab
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