         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Doug Lathan,                                   :
                                               :
                      Petitioner               :
                                               :
              v.                               : No. 229 C.D. 2016
                                               : Submitted: August 5, 2016
Unemployment Compensation                      :
Board of Review,                               :
                                               :
                      Respondent               :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                             FILED: October 7, 2016

              Doug Lathan (Claimant), pro se, petitions for review of an order of
the Unemployment Compensation Board of Review (Board), which affirmed the
determination of the Referee that Claimant was ineligible for unemployment
compensation benefits under section 402(e) of the Unemployment Compensation
Law (Law).1 The Board concluded that Claimant did not establish proper cause for
nonappearance at an initial hearing before the Referee and, accordingly, did not
consider Claimant’s testimony on the merits of the case at a subsequent, remand

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
hearing; the Board adopted and incorporated the Referee’s findings and
conclusions. For the reasons that follow, we affirm.
             Claimant applied for unemployment benefits following his discharge
from employment as a store manager with Jo-Ann Fabric and Craft Stores
(Employer), and the Department of Labor and Industry (Service Center) issued a
July 29, 2015 determination finding him not ineligible for benefits. (Record Item
(R. Item) 5, Notice of Determination.) Employer appealed, and a hearing was held
before the Referee on September 2, 2015, at which Claimant did not appear and
two Employer witnesses, a Tax Consultant Representative and Employer’s District
Manager, testified. (R. Item 9, Referee’s Hearing Transcript of Testimony (H.T.).)
Following the hearing, the Referee issued a decision and order reversing the
determination of the Service Center, and finding Claimant ineligible for
unemployment benefits under Section 402(e) of the Law. The Referee determined
that Employer presented credible testimony and evidence establishing Claimant’s
job responsibilities and Claimant’s knowledge of, and violation of its policies. (R.
Item 10, Referee’s Decision/Order, Reasoning.) The Referee further determined
that because Claimant did not appear at the hearing to establish good cause for
failing to follow Employer’s policies, the Employer had met its burden of
establishing that Claimant’s discharge from employment was for reasons which
rose to the level of willful misconduct. (Id.) The Referee made the following
findings of fact:

                   1. The claimant was employed with [Employer] as
             a store manager, full-time, at a final rate of pay of
             approximately $45,000 per year, from August 2014, until
             May 21, 2015, his last day of work.



                                         2
       2. [Employer] has a policy that the store manager
must follow a checklist, called a store tour, on a daily
basis to ensure that certain policies and procedures are
followed.

      3. [Employer] has certain floor plans that assign
the layout for items in the store, which, as the store
manager, the claimant was responsible for implementing.

      4. As part of the claimant’s job duties, he was
responsible for ensuring that appropriate signs were
placed within the facility and in the windows of
[Employer’s] facility at given times.

      5. As part of the claimant’s job duties, he was
responsible for taking the daily bank deposit by 9:00
AM, prior to the opening of the store.

       6. The claimant was, or should have been, aware of
his job responsibilities pursuant to [Employer’s] policies.

       7. Throughout the duration of the claimant’s
employment, [Employer] had issues with the claimant
failing to complete his assigned duties as the store
manager.

      8. In December 2014, the claimant was given a
written warning due to failure to complete the bank
deposits in accordance with policy.

       9. On or about December 17, 2014, the claimant
store failed an audit due to a number of issues with the
claimant’s job performance and failure to follow policies.

      10. Following that audit, the claimant was placed
on an Audit Action Plan, through which the claimant was
warned of discharge if his performance failed to improve.

      11. On March 5, 2015, the claimant was again
written up regarding failing to follow proper cash
handling procedures with regard to bank deposits.


                            3
                   12. On April 25, 2015, the District Manager met
             with the claimant, and again discussed the items on the
             Audit Action Plan, half of which had not been achieved.

                   13. On May 5, 2015, the claimant failed to
             complete the store tour, failed to place inventory in
             accordance with the floor plan, and failed to have the
             proper signage in the facility.

                    14. The claimant was warned regarding those
             issues on May 5, 2015.

                    15. On May 19, 2015, the claimant again failed to
             complete the store tour, had failed to correct the floor
             plan, and failed to correct the signage in the facility.

                   16. The claimant was discharged effective May
             21, 2015, for poor job performance and failing to follow
             [Employer’s] policies with regard to his job duties.

(Id., Findings of Fact.)
             Claimant filed an appeal with the Board, asserting that he had not
received the hearing notice in time. (R. Item 12, Claimant’s Petition for Appeal.)
The Board remanded the case to the Referee, acting as hearing officer for the
Board, to allow Claimant to testify as to his reason for not appearing at the
previous hearing and to allow the parties to offer evidence on the merits of the case
should the Board accept Claimant’s excuse as a proper cause.           (R. Item 13,
Remand Memo; R. Item 14, Board Hearing Order.)             At the remand hearing,
Claimant and a witness for Employer, with counsel, testified. (R. Item 16, Board
Hearing – Remand.) On December 17, 2015, the Board issued its order, stating:

             The claimant testified that his small children sometimes
             get the mail and that the hearing notice fell behind a
             cabinet and it was not located until after the hearing date
             passed. The claimant’s failure to discover a hearing
             notice that was delivered by the postal authorities is
             considered negligence and does not provide proper cause
                                         4
              for failing to attend the referee hearing. Accordingly, the
              Board cannot consider the claimant’s testimony on the
              merits of the case. The Board adopts and incorporates
              the Referee’s findings and conclusions….
(R. Item 17, Board’s Order.) Claimant appealed the Board’s order to this Court.2
              Claimant argues that the Board erred in not considering the testimony
he provided at the remand hearing. The Board, pursuant to Department of Labor
and Industry regulations, may schedule a remand hearing and consider testimony
and evidence presented on the merits where it has determined that there was proper
cause for the claimant’s nonappearance. 34 Pa. Code §101.24(a), (c). Our Court
has held that the failure to receive or to timely receive a hearing notice can
constitute “proper cause” for not attending a hearing. Volk v. Unemployment
Compensation Board of Review, 49 A.3d 28, 44-45 (Pa. Cmwlth. 2012). However,
we have also held that a party’s own negligence is not sufficient good cause as a
matter of law for failing to appear at a referee hearing. Eat’N Park Hospitality
Group, Inc. v. Unemployment Compensation Board of Review, 970 A.2d 492, 494
(Pa. Cmwlth. 2008) (employer’s instructions to referee with respect to attempting
to contact employer’s witness by telephone were not accurate due to employer’s
own negligence); Kelly v. Unemployment Compensation Board of Review, 747
A.2d 436, 439 (Pa. Cmwlth. 2000) (employer’s personnel director failed to explain
why she did not discover hearing notice over several days she was in office or why
notice was not reviewed by person reviewing mail in her absence); Savage v.
Unemployment Compensation Board of Review, 491 A.2d 947, 950 (Pa. Cmwlth.
1985) (claimant’s own negligence was sole cause of failure to appear where

2
 Our scope of review is limited to determining whether necessary findings of fact are supported
by substantial evidence, whether an error of law was committed and whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Smithley v.
Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.5 (Pa. Cmwlth. 2010).
                                               5
claimant admitted receipt of timely notice but asserted he misread the hearing
date). Here, Claimant does not contend that the hearing notice was not timely
delivered to his address, but rather that it “inadvertently” got into the hands of his
very young children, and was later found, after the date of the hearing, behind a
cabinet near the entry of his home. The Board properly determined that Claimant’s
failure to discover the hearing notice must be considered negligence, and did not
err in not considering his testimony on the merits.
             Claimant also argues that he did not engage in willful misconduct at
any time during his employment. However, having determined that the Board did
not err in excluding his testimony at the remand hearing, our review is limited to
whether the evidence presented by Employer at the September 2, 2015 hearing
before the Referee constitutes substantial evidence to support the Board’s
conclusion that Claimant’s actions constituted willful misconduct in connection
with his work. The findings and conclusions of the Referee, as adopted by the
Board, were based upon the Employer’s testimony, found competent, as well as a
careful review of the documentary evidence with regard to the repeated warnings
and counseling provided to Claimant regarding his failure to follow Employer’s
policies.
             Whether a claimant’s conduct rises to the level of willful misconduct
is a question of law that is subject to plenary review by this Court. Orend v.
Unemployment Compensation Board of Review, 821 A.2d 659, 661 (Pa. Cmwlth.
2003). The term “willful misconduct” is not defined by statute, but has been
interpreted by the courts to include: 1) wanton or willful disregard of the
employer’s interests; 2) deliberate violation of the employer’s rules or directives;
3) disregard of the standards of behavior which an employer can rightfully expect


                                          6
from an employee; and 4) negligence demonstrating an intentional disregard of the
employer’s interest or the employee’s duties and obligations. Grieb v.
Unemployment Compensation Board of Review, 827 A.2d 422, 425 (Pa. 2003). An
employer seeking to prove willful misconduct by showing that the claimant
violated the employer’s rules or policies must prove the existence of the rule or
policy and that the claimant violated it. Walsh v. Unemployment Compensation
Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). However, once an
employer has met its burden, the burden then shifts to the claimant to show good
cause justification for the conduct considered willful. McKeesport Hospital v.
Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth.
1993).
              Here, Employer established that despite repeated written warnings,
meetings and store visits by Employer’s management personnel, and the
establishment of a detailed performance improvement plan, Claimant failed to
comply with store policies and procedures, did not complete required daily store
tours, did not complete bank deposits pursuant to store policy, and failed to
implement an audit action plan. Because he failed to establish proper cause for his
nonappearance at the September 2, 2015 Referee hearing, Claimant forfeited his
opportunity to offer testimony to rebut the credible testimony and evidence offered
by Employer and failed to show good cause for his behavior. Accordingly, we
affirm the Board’s order.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge



                                        7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Doug Lathan,                        :
                                    :
                 Petitioner         :
                                    :
           v.                       : No. 229 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                 Respondent         :


                               ORDER


           AND NOW, this 7th day of October, 2016, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
