          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrone Hall,                    :
                    Petitioner :
                                :
           v.                   :
                                :
Unemployment Compensation Board :
of Review,                      : No. 709 C.D. 2015
                    Respondent : Submitted: February 19, 2016


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: March 9, 2016


               Tyrone Hall (Claimant) petitions pro se for review of an order of the
Unemployment Compensation Board of Review (Board) finding him ineligible for
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law)1 because his termination was due to willful misconduct.
For the reasons that follow, we affirm.

      1
         Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L.
(1937) 2897, as amended, 43 P.S. §§751–914. Section 402(e) provides, in pertinent part:

               An employe shall be ineligible for compensation for any week—

                                            ***

(Footnote continued on next page…)
                                                I.
                The following facts are not in dispute. Claimant was employed as a
Junior Asset Management Specialist for IntellecTechs (Employer) from April 21,
2014, through June 6, 2014. In August 2014, he filed a claim stating that he was
forced to quit his job for medical reasons as his physician ordered him to refrain
from working due to a medical problem he suffered while at military reserves
training. In a follow-up call placed by the Unemployment Compensation Service
Center (Service Center), Claimant explained, “[I] am under doctors’ [sic] orders to
not work at all[.]” (Certified Record [C.R.], Record of Oral Interview (8/15/14)).


                The Service Center determined that Claimant satisfied his burden of
proving that he voluntarily quit his job for health reasons and that he informed
Employer of his health limitations, thereby demonstrating that he was not
ineligible for benefits under Section 402(b) of the Law.2                  However, because



(continued…)

                      (e) In which his unemployment is due to his discharge or
                temporary suspension from work for willful misconduct connected
                with his work, irrespective of whether or not such work is
                “employment” as defined in this act

43 P.S. §802(e).

       2
           Section 402(b) renders an employee ineligible for compensation for any week:

                In which his unemployment is due to voluntarily leaving work
                without cause of a necessitous and compelling nature, irrespective
                of whether or not such work is in “employment” as defined in this
                act: Provided, That a voluntary leaving work because of a
                disability if the employer is able to provide other suitable work
(Footnote continued on next page…)

                                                2
Claimant’s work restrictions were so great that he was unable to accept any type of
work offered by Employer, the Service Center found him ineligible for benefits
pursuant to Section 401(d)(1) of the Law.3


                Employer appealed the Service Center’s determination under Section
402(b) of the Law to the Board, asserting that Claimant did not voluntarily quit his
job for health reasons, but rather, was terminated on June 7, 2014, for falsifying
timesheets resulting in the theft of company funds. In support of its appeal,
Employer stated that Claimant did not work May 2730, 2014, but nonetheless
reported his paid time off as hours worked in Employer’s time-management system
in violation of Employer’s “Timesheets, Payroll, and Pay Deductions” Policy and
further failed to report the overpayment.

(continued…)

                shall be deemed not a cause of a necessitous and compelling
                nature….

43 P.S. §802(b).

       3
           To be eligible to receive compensation benefits, an employee must:

                [be] able to work and available for suitable work: Provided, That
                no otherwise eligible claimant shall be denied benefits for any
                week because he is in training with the approval of the secretary
                nor shall such individual be denied benefits with respect to any
                week in which he is in training with the approval of the secretary
                by reason of the application of the provisions of this subsection
                relating to availability for work or the provisions of section 402(a)
                of this act relating to failure to apply for or a refusal to accept
                suitable work.

Section 401(d)(1) of the Law, 43 P.S. §801(d)(1).




                                                 3
            At a telephonic hearing in September 2014, the Referee noted that she
attempted to call Claimant twice but the call went directly to voicemail, and it
appeared that Claimant turned his telephone off, despite the fact the hearing notice
indicated that Claimant was to call the office.      Employer’s Chief Executive
Officer, Jeri Prophet, testified that she terminated Claimant on June 7, 2014, via
telephone call and by letter dated August 1, 2014, because “[h]e falsified time
sheets resulting in overpayment and upon investigation it was done intentionally
and he did not report the payroll error resulting in being paid company funds that
[were] not due to him.” (C.R., 9/19/14 Transcript of Testimony, at 3.)


            CEO Prophet explained that Employer was a government contractor
for which Claimant worked at an off-site location—a United States Marine Corp
Base at Camp Lejeune. She stated that on June 11, 2014, the Camp Lejeune site
manager notified her that Claimant had not reported to work since Monday, June 9,
2014, and advised that the government was terminating the contract position.
After this exchange, CEO Prophet immediately contacted Claimant via text
message to inquire about his whereabouts. She testified that Claimant did not
respond until June 13, 2014, when he advised that he was away for military drill
due to the fact that he is a reservist for the United States Military. CEO Prophet
explained that Employer maintained a policy and procedure for requesting time off
but that Claimant failed to follow it. According to CEO Prophet, Claimant advised
via text message that he had informed the site manager of his whereabouts.


            Regardless, when the government terminated the position on June 11,
2014, it requested Employer to submit a time audit pursuant to which Employer



                                         4
provided a log of all of Claimant’s time. While reviewing the logs, CEO Prophet
testified that it came to her attention that Claimant had requested time off for May
27–30, 2014, but still represented that he worked those days on his timesheet.
Employer also presented a screenshot of the “Timesheet Payroll” Form Claimant
submitted, indicating that from May 16 to May 31, 2014, Claimant worked 80
hours with no paid time off.


            CEO Prophet explained that in follow up, Claimant stated that he did,
in fact, take off May 27–30, 2014, for a funeral. According to CEO Prophet,
Claimant then admitted knowing that he claimed this time on his timesheet and
understood that he had been overpaid. She summarized their conversation as
follows:

            I asked him why he failed to report the overpayment and
            he indicated at that point that he didn’t know. And I
            asked him, you know, do you understand the policies and
            procedures in the employee handbook that you are
            responsible for accurately recording your time, you
            signed the policy. He indicated to me that he did
            understand and that he did understand that he was not
            tracking his time according to our or the government’s
            time keeping system. It was very clear to me upon
            discovery that there was another entire week of time that
            he had put into the time keeping system that he did not
            show up for work not one day that week and so upon
            those two discoveries without reporting the payroll error
            that he was terminated immediately for theft of company
            funds.


(Id. at 7.) In other words, CEO Prophet explained that upon investigation, she
detected several instances where Claimant did not show up for work at Camp


                                         5
Lejeune but indicated that he had worked on his timesheet, thereby hiding his
absence from CEO Prophet who otherwise would not have known since she works
in Virginia.


               The Referee issued a decision crediting Employer’s evidence and
finding Claimant ineligible for benefits under Sections 402(b) and 401(d)(1) of the
Law. Specifically, with regard to Section 402(b), the Referee determined that
Employer’s undisputed testimony satisfied its burden of showing that Claimant
was terminated for willful misconduct because he admitted claiming time for
which he had not worked, despite being aware of Employer’s policies. Further,
with respect to Section 401(d)(1), the Referee explained that although a claimant is
presumed to be able and available for work when he files a claim, here, Claimant
rebutted this presumption by informing the Service Center that he was not able and
available for work.


               Claimant appealed to the Board, explaining that he was unable to
attend the hearing before the Referee and requested that it be rescheduled in
advance. He further advised that the hearing was, in fact, rescheduled pursuant to
a notice he received in the mail. The Board remanded the matter to the Referee for
a hearing to determine whether Claimant had proper cause for his non-appearance
at the prior hearing.




                                         6
              On remand,4 the Referee conducted another hearing by telephone at
which Claimant testified regarding his non-appearance at the first hearing.5
Regarding the merits of the case, Claimant testified that in May 2014, he notified
Employer as well as the governmental entity with which Employer had a contract
that he required time off due to a family member’s death.                    He stated that
subsequently, Romeo Speeno, one of CEO Prophet’s associates, contacted him
about his timesheet. According to Claimant, he realized that he made a mistake
inputting his time and disclosed the same to Mr. Speeno, who agreed to correct the
error. Additionally, he stated that he informed CEO Prophet of the mistake. He
stated that he received notice of his termination on June 7, 2014, at which time he
was serving reserved military duty and that he interpreted that letter to terminate
him because of his absence on that date. He testified that he discussed the issue
with Employer, which planned to investigate but asked him to return his equipment
in the meantime.        Subsequently, he received a letter indicating that he was
terminated due to his May timesheet. He stated that after receiving the letter, he
contacted Employer and advised that the timesheet issue had already been resolved
as per prior conversations.




       4
         The Referee conducted another hearing by telephone and, again, Claimant neither called
in nor answered his telephone. However, realizing that the hearing notice was not sent to the
Philadelphia address to which Claimant recently moved, the Referee rescheduled the hearing.
Likewise, Employer was apparently unaware of the hearing.

       5
         Because the Board determined that Claimant’s non-appearance at the initial hearing was
excusable, and because that finding has not been challenged on appeal, we will not set forth at
length Claimant’s testimony regarding this issue.




                                              7
             On cross-examination, Claimant admitted that CEO Prophet provided
his initial employee orientation but denied that she taught him how to input time,
stating that Mr. Speeno assisted him in doing so in May 2014.              He did
acknowledge that during the orientation, CEO Prophet reviewed the timekeeping
system with him, but explained that “I didn’t have any of the equipment in front of
me to you know understand it.” (C.R., 11/24/14 Transcript of Testimony, at 18.)
He agreed that he received the Employee Handbook and reviewed it but denied
recalling its policy regarding incorrect entries of time.


             Claimant stated that he knew he had claimed time for the days he took
off for bereavement in May 2014 and, therefore, called Mr. Speeno in May to
address the issue since he was unable to reach CEO Prophet. Thereafter, he
assumed the issue was resolved. However, when questioned who handles payroll
issues for Employer, Claimant stated that Human Resources does and admitted that
Mr. Speeno is not part of Human Resources but stated that he is Claimant’s first
contact manager and a recruiter. Claimant explained that when he subsequently
viewed his timesheet and realized the error had not been corrected, he left a
voicemail for CEO Prophet on May 27 or 28, 2014, and thought he sent an email
to her as well.


             Regarding his termination, Claimant explained that initially, he was
not given a reason as to why he was fired. Because he had been away from work
on reserve duty orders, he presumed his absence to be the reason but provided
those orders a month in advance and later learned his termination was due to his




                                           8
May timesheet, which he thought was resolved. With respect to why it was proper
for Claimant to contact Mr. Speeno about his timesheet error, he stated:

                    He was doing that work. He was anything at the
             first—he said he was like my manager. He said anything
             [sic] call him up and he’ll help me. He’ll straighten out
             that. I said okay fine. So that was like my first line of
             defense for me right there to call him up and if anything
             go [sic] on that’s the person I talk to but I couldn’t get
             contact with Ms. Prophet that was my first line of
             defense. Him, he was like my manager. He told me if I
             had any problems give him a call.


(Id. at 23.) He recalled that his termination was provided via email and that he
never spoke to CEO Prophet personally.


             In rebuttal, CEO Prophet stated that Claimant was provided an
Employee Handbook for which he signed, along with numerous emails indicating
that CEO Prophet handles all payroll issues. She explained that Claimant was
provided her cellphone number and yet, Claimant apparently reached out to Mr.
Speeno, who is a recruiter and is no longer involved in the employment process
once an employee is hired. She recalled that she spoke to Claimant numerous
times about other issues and at no point did he mention his timesheet error.
Further, according to her, Claimant never advised her that he had discussed this
issue with Mr. Speeno. Regarding his absence while at drill, CEO Prophet stated
that she requested he provide her with his orders numerous times and that he
repeatedly failed to do so.




                                         9
            Claimant disputed that he failed to provide his orders, indicating that
he emailed scanned copies of his orders to CEO Prophet and Mr. Speeno and
verbally advised both of them as well. Claimant also submitted a note from
William Chapman, M.D. dated September 9, 2014, indicating that Claimant was
able to return to work with no restrictions as of the following day, September 10,
2014.


            Following the hearing, the Board determined that Employer satisfied
its burden of proving that Claimant was discharged for willful misconduct because
based on Employer’s policy, Claimant was or should have been aware of
Employer’s timekeeping and payroll practices and should have known that any
problems with respect to these issues needed to be directed to CEO Prophet.
Further, the Board credited CEO Prophet’s testimony that Claimant both requested
time off and requested payment for hours he did not work on May 2730, 2014,
and admitted to being aware of the overpayment despite the fact he did not report
it. The Board rejected Claimant’s testimony that he reported the issue to Mr.
Speeno. As such, the Board concluded that “the [C]laimant’s action of knowingly
submitting inaccurate timesheets and failing to notify the [E]mployer of an
overpayment falls below the standard that an employer has the right to expect from
an employee and benefits must be denied under Section 402(e) of the Law.”
(3/11/15 Board Decision, at 3.) Claimant filed a motion for reconsideration, which
the Board denied, and this appeal followed.




                                        10
                                               II.
               On appeal,6 Claimant first contends that the Board erred in
determining that he lacked a necessitous and compelling reason for quitting his job
pursuant to Section 402(b) of the Law. However, the Board did not find Claimant
ineligible for benefits because he quit under Section 402(b); rather, it found him
ineligible under Section 402(e) on the basis that he was terminated for willful
misconduct. Claimant acknowledges this fact in his brief, noting that he “was
discharge[d] from his employment.” (Brief of Petitioner, at 10.) Nonetheless, he
suggests that we apply the law applicable to Section 402(b). Because Claimant has
conflated these issues and because the Board made no finding of ineligibility
pursuant to Section 402(b), we reject Claimant’s argument.


               Further, Claimant asserts that the Board’s decision must be reversed
because insofar as it relied on Section 402 of the Law, that provision does not
exist. In support of this claim, he cites 43 P.S. §402 and notes that this provision
was repealed by the Act of May 22, 1933.                     In this regard, Claimant has

       6
         Our review is limited to determining whether the Board’s findings of fact are supported
by substantial evidence in the record, whether errors of law were committed, whether agency
procedure was violated, or whether constitutional rights were violated. Gillins v. Unemployment
Compensation Board of Review, 633 A.2d 1150, 1153 (Pa. 1993). We have defined “substantial
evidence” as such “relevant evidence that a reasonable mind might consider adequate to support
a conclusion.” Palladino v. Unemployment Compensation Board of Review, 81 A.3d 1096, 1100
n.3 (Pa. Cmwlth. 2013).

        After the instant appeal was initiated, the Board filed an application to dismiss, arguing
that Claimant waived the only issue capable of review by failing to address it in his brief. We
declined to dismiss the appeal at that time, but ordered that the application be considered with
the merits of the petition. For the reasons discussed below, we deny the application but affirm
the Board’s ruling.




                                               11
misconstrued the Board’s decision. Although the Board relied on Section 402 of
the Law, that provision is codified at 43 P.S. §802, not 43 P.S. §402, and the
former section remains in full force and effect. Therefore, we likewise find this
argument without merit.7


             Accordingly, we affirm the Board’s decision finding Claimant
ineligible for unemployment compensation benefits pursuant to Section 402(e) of
the Law, 43 P.S. §802(e).




                                         DAN PELLEGRINI, Senior Judge




      7
         Notably, Claimant has made no argument with respect to and has not challenged on
appeal the Board’s findings pursuant to Section 402(e) of the Law.



                                           12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrone Hall,                    :
                    Petitioner :
                                :
           v.                   :
                                :
Unemployment Compensation Board :
of Review,                      :
                    Respondent : No. 709 C.D. 2015




                                ORDER


               AND NOW, this 9th day of March, 2016, the order of the
Unemployment Compensation Board of Review dated March 11, 2015, at No. B-
576035, is affirmed.




                                  DAN PELLEGRINI, Senior Judge
