               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew A. Bomberger,                      :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 2420 C.D. 2014
                    Respondent             :   Submitted: July 24, 2015



BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: September 29, 2015

             Matthew A. Bomberger (Claimant)1 petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) November 24, 2014
order affirming the Referee’s decision finding Claimant ineligible for UC benefits
under Section 402(e) of the UC Law (Law).2 Claimant essentially presents two issues
for this Court’s review: (1) whether the UCBR erred in determining that Claimant
engaged in willful misconduct; and, (2) whether the UCBR erred by ruling that
Claimant was not subjected to disparate treatment. After review, we affirm.
             Claimant was employed by Lancaster County (Employer) as an Assistant
Public Defender from September 4, 2001 through July 14, 2014. His duties included,
inter alia, providing legal representation for adults and juveniles charged with

      1
         Claimant, an attorney, represented himself throughout these proceedings.
      2
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
criminal offenses. On July 14, 2014, after numerous prior warnings, Employer
terminated Claimant’s employment due to carelessness, substandard work and lack of
cooperation/teamwork. Thereafter, Claimant applied for UC benefits.
               On August 5, 2014, the Lancaster UC Service Center determined that
Claimant was eligible for UC benefits under Section 402(e) of the Law. Employer
appealed and a Referee hearing was held on September 4, 2014. By September 16,
2014 decision, the Referee reversed the UC Service Center’s determination, holding
that Claimant was ineligible for UC benefits under Section 402(e) of the Law due to
his failure to follow Employer’s work rules/policies.                 Claimant appealed to the
UCBR. On November 24, 2014, the UCBR adopted and incorporated the Referee’s
findings and conclusions and affirmed the Referee’s decision. Claimant appealed to
this Court.3 Employer intervened.4
               Claimant argues that the UCBR erred in determining that he engaged in
willful misconduct because the findings of fact were not supported by substantial
evidence. We disagree. Section 402(e) of the Law provides that a claimant shall be
ineligible for UC benefits for any week where “his unemployment is due to his
discharge . . . from work for willful misconduct connected with his work[.]” 43 P.S.
§ 802(e). “The employer bears the initial burden of proving a claimant engaged in
willful misconduct.” Ductmate Indus. v. Unemployment Comp. Bd. of Review, 949
A.2d 338, 342 (Pa. Cmwlth. 2008). This Court has held:

               Though not defined in the Law, willful misconduct has been
               interpreted to include: (i) wanton and willful disregard of
               the employer’s interests; (ii) a deliberate violation of the

       3
          “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
        4
          By June 29, 2015 letter, the UCBR notified this Court that it would not file a brief in this
matter.
                                                  2
             employer’s rules; (iii) a disregard of the standards of
             behavior that the employer rightfully can expect from its
             employees; and (iv) negligence that manifests culpability,
             wrongful intent or evil design, or an intentional and
             substantial disregard of the employer’s interests or the
             employee’s duties and obligations.

Oyetayo v. Unemployment Comp. Bd. of Review, 110 A.3d 1117, 1121 (Pa. Cmwlth.
2015). “Whether a claimant’s actions rise to the level of willful misconduct is a
question of law fully reviewable on appeal.” Ductmate Indus., 949 A.2d at 342.

             We note that mere incompetence, inexperience, or inability
             to perform a job generally will not support a finding of
             willful misconduct. However, it is well-established that an
             employee’s failure to work up to his or her full, proven
             ability, especially after multiple warnings regarding
             poor work performance, must be construed as willful
             misconduct because such conduct demonstrates an
             intentional disregard of the employer’s interest or the
             employee’s obligations and duties.

Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647-48 (Pa. Cmwlth.
2012) (citations omitted; emphasis added). “Once the employer meets its burden, a
claimant may then prove he had good cause for his actions.           Good cause is
established where the action of the employee is justifiable or reasonable under the
circumstances[.]” Umedman v. Unemployment Comp. Bd. of Review, 52 A.3d 558,
561 (Pa. Cmwlth. 2012) (quoting Dep’t of Corr. v. Unemployment Comp. Bd. of
Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008) (citation and quotation marks
omitted)).
             Here, Employer’s Chief Public Defender James Karl (Karl) testified at
the Referee hearing that the trial court schedules the criminal proceedings, and Karl
schedules public defenders to cover blocks of those proceedings. Karl expounded
that the individual public defenders also have assignments that they schedule
themselves. Karl admitted that there are times when these schedules overlap or


                                         3
conflict and, when that occurs, it is up to each of the attorneys to resolve them.5 He
stated: “It’s not a perfect system, but it’s the system the Court has forced on us.
We’re required to do our utmost to exist in it.” Notes of Testimony, September 4,
2014 (N.T.) at 51. Karl also articulated that Employer has a general policy that the
assistant public defenders are to “provide zealous advocacy” for their clients. N.T. at
19.
              Karl described that Claimant had a history of carelessness and
substandard work that typically involved scheduling and organizational problems for
which Claimant received a verbal warning in August 2003, and written warnings in
April 2007 and July 2008. Karl pronounced that Claimant received a fails-to-meet-
expectations evaluation in September 2004 due to his scheduling and organizational
difficulties and, although he eventually improved, his improvement lasted only a
short time. Karl further recalled that Claimant was suspended for five days in August
2011 for offenses that included taking action contrary to a client’s best interests.
              Karl explained that Claimant received another written warning on April
8, 2014 for an April 3, 2014 carelessness and substandard work incident after a trial
court judge complained that Claimant failed to appear at a guilty plea
videoconference6 and, after the judge’s staff located him in another courtroom
proceeding, Claimant admitted that he forgot. Karl further stated that Claimant was
issued a verbal warning for scheduling and organizational problems and substandard
courtroom advocacy on April 16, 2014 stemming from Claimant’s failure to timely




       5
          Karl related that the block schedules change rapidly because cases are pled or are
postponed and are removed from the list, so they often do not take the full time allotted.
        6
          Videoconferences are arranged for incarcerated individuals to make live pleas without
being transported to the courtroom.
                                              4
notify, in writing, non-incarcerated clients of their court appearances.                   Karl
pronounced that Claimant did not appeal from any of these disciplinary actions.7
              Regarding the most recent incidents leading to Claimant’s discharge,
Karl recounted that a block of Claimant’s clients were scheduled for pretrial
conferences on May 27, 2014 and, rather than mail advanced written notice to five
non-incarcerated clients that they were to appear for the conferences, Claimant called
them the morning of the conferences, and those who could not be reached failed to
attend. Karl stated that because Claimant admitted to the trial judge that he failed to
properly notify them, the trial judge did not issue bench warrants for the absent
clients.
              Karl also articulated that on June 20, 2014, Claimant’s failure to
zealously advocate for his client, J.W.,8 led to a bench warrant being issued for her
arrest. Karl testified that J.W. notified Claimant on June 18, 2014 that she could not
attend a proceeding before Judge Totaro on June 20, 2014 because she had been
subpoenaed to appear before District Judge Herman as a witness in another matter.
Karl reported that Claimant received a fax from J.W. confirming the conflict, but
nevertheless failed to notify Judge Totaro, and also allowed Judge Totaro to issue a
bench warrant for J.W.’s failure to appear without explaining J.W.’s conflict. Karl
recalled that Judge Totaro rejected Claimant’s attempts to correct the situation later
that day, and that Claimant advised J.W. to turn herself in. Karl noted that Judge
Totaro vacated J.W.’s bench warrant after Employer’s other staff intervened and
explained the circumstances to Judge Totaro the following week. Karl stated that
Claimant’s response was that it was not his responsibility to resolve a client’s
scheduling conflicts.
       7
         Claimant signed both his August 9, 2011 and April 8, 2014 Corrective Action Reports
which reflected that consequences for his failure to improve was “[p]rogressive discipline up to
termination.” Certified Record Item 3 at 6, 13.
       8
         J.W.’s initials are used to protect her identity in the interest of confidentiality.
                                               5
              Karl further described that although Claimant had five cases on the
court’s June 23, 2014 status conference list, he went on vacation from June 23 to 27,
2014 without making the necessary advanced arrangements to have the status
conferences covered by other public defenders. Rather, Claimant emailed the judges
(initially sending the emails to the wrong judges), and completely failed to contact
one of the five clients who appeared in court and required another public defender’s
last-minute representation.9
              According to Employer’s Corrective Action Report regarding the May
27 to June 23, 2014 incidents that ultimately led to Claimant’s discharge: “[Claimant]
has not been able to conform his conduct over time to the expectations of [Employer].
This conduct has negatively affected the credibility and operations of the Public
Defender’s Office.” Certified Record (C.R.) Item 3 at 4. Karl concluded that any
one of these incidents supports Claimant’s discharge, but the most serious was J.W.’s
bench warrant incident.
              Karl stated that of Employer’s 23 public defenders, 17 of them have
Claimant’s same duties and time constraints. He specified that it is each attorney’s
responsibility “to send written notice by United States mail to his non-incarcerated
clients[] who are required to appear [in court],” and also to resolve scheduling
conflicts that occur. N.T. at 19; see also N.T. at 16. He articulated that the other
attorneys find ways to deal with their scheduling demands. Karl asserted: “They
resolve conflicts before they exist. They know where they’re supposed to be when.
[sic] They advise appropriate Court personnel of their need to be somewhere else,
[and] try to coordinate things. In my 20-year history as Chief [Public Defender], I’ve



       9
         Karl explained that when clients are added by the trial court at the last minute, Employer
issues the client’s notice. In this case, when the client attended the conference and Claimant did
not, another public defender was required to take Claimant’s place.
                                                6
only written up one other person for a scheduling/organizational problem.” N.T. at
52.
              During the Referee hearing, Claimant spent a significant amount of time
attempting to refute and/or justify the incidents leading to Employer’s August 2003 to
April 2014 disciplinary actions, but admitted that he had not appealed from any of
them.10 He claimed that it was Employer’s common practice to send last-minute
court appearance notices to clients. As an example, he explained that when he
suffered a heart attack during his vacation on June 26, 2014, the attorneys who
covered for him sent last-minute notices to his clients for their court appearances.11
              Claimant asserted that his organizational difficulties were caused by
Karl’s dereliction in managing the public defenders’ schedules. 12                     Claimant
contended that Karl’s double-scheduling was unique to Claimant, and expounded:
              [W]hat I have been trying to get across is I’m so
              overscheduled. I’m placed in two and three courtrooms at a
              time in the afternoon. You cannot be in more than one
              place at one time. . . . [T]he week in question [June 18 to
              20, 2014], I was in court in the morning and afternoon
              somewhere every day but Thursday morning [June 19,
              2014]. And then I had to catch up everything else I had to
              do that morning. . . . Meanwhile, I’m trying to negotiate
              with DAs. I’m trying to . . . schedule with the Court . . . .




       10
           Among other things, Claimant argued that he suffered post-traumatic stress disorder
(PTSD) for which he was treated in August and September 2011. See N.T. at 74. The Referee
sustained a relevance objection regarding Claimant’s PTSD claim. See N.T. at 75.
        11
           The Referee admitted certain records Claimant produced, but only to show Employer’s
attempt to cover for Claimant during his illness, not to prove that Employer commonly provided
clients with last-minute court appearance notices. See N.T. at 65-66; see also Exs. C-6, C-7.
        12
           Claimant related that he has filed several complaints against Karl about which Employer
did nothing, and that Employer raised an ineffective assistance of counsel claim regarding him,
which was resolved in his favor.
                                                7
N.T. at 76-77. However, Claimant acknowledged that he understood that he was
required to remedy schedule conflicts. Specifically, he stated that when he would
notify Karl of such conflicts, Karl would tell him to “[f]ix it.” See N.T. at 83.
             Claimant admitted that he arrived late to a guilty plea on April 3, 2014,
which was the basis for Employer’s April 8, 2014 written warning and told the
presiding judge that he had forgotten about it while he was attending another hearing,
and the judge chose not to proceed. See N.T. at 68-69. Claimant asserted that his late
arrival caused no harm since he arrived with approximately 10 minutes remaining for
the videoconference, this client’s plea had already been postponed numerous times,
and the judge eventually accepted the guilty plea. Claimant also averred that he had
pneumonia and swine flu the week of April 7, 2014.
             Claimant alleged that his illness resulted in the April 16, 2014 late notice
incident. He explained that he did not have someone else in the office cover for him
because: “Well, I assume if I’m being double-scheduled[,] there isn’t anyone in the
office available; otherwise, they would have been scheduled for it.” N.T. at 84. He
articulated that he told the judge he tried to call his client to appear, but he couldn’t
reach her. When asked: “Why didn’t you tell . . . the Judge that you hadn’t provided
written [notice?],” Claimant responded: “He didn’t ask.” N.T. at 85.
             Regarding the June 20, 2014 matter, Claimant admitted that J.W. told
him she was not available to appear in Judge Totaro’s courtroom, and that she sent
him the subpoena, but claimed that he did not see it, and when he attempted to
contact her regarding her whereabouts, her daughter told him J.W. was on her way to
court, which he thought meant Judge Totaro’s courtroom. Claimant admitted that he
did not tell Judge Totaro about J.W.’s conflict because he “momentarily forgot.”
N.T. at 79. Claimant maintained that when the misunderstanding was clarified, Judge
Totaro agreed to see J.W. that afternoon, but J.W. did not have transportation to
court. Claimant began his vacation the following Monday, June 23, 2014.               He
                                            8
reiterated that when J.W. appeared in court on June 23, 2014, Claimant’s coworkers
convinced Judge Totaro to vacate J.W.’s bench warrant.
             Claimant recounted that he emailed the necessary parties regarding the
June 23, 2014 status conferences, except for a last-minute client assigned to him on
June 19, 2014 and who was designated pro se on Employer’s list. He explained that
he was in court all day on June 20, 2014, the day before his vacation, and since the
client did not have to attend the status conference, notice should not have been a basis
for disciplinary action against him.
             The law is well established that:

             [T]he [UCBR] is the ultimate fact-finder in unemployment
             compensation matters and is empowered to resolve all
             conflicts in evidence, witness credibility, and weight
             accorded the evidence. It is irrelevant whether the record
             contains evidence to support findings other than those made
             by the fact-finder; the critical inquiry is whether there is
             evidence to support the findings actually made. Where
             substantial evidence supports the [UCBR’s] findings, they
             are conclusive on appeal.

Ductmate Indus., 949 A.2d at 342 (citations omitted). This Court has explained:

             Substantial evidence is relevant evidence upon which a
             reasonable mind could base a conclusion. In deciding
             whether there is substantial evidence to support the
             [UCBR’s] findings, this Court must examine the testimony
             in the light most favorable to the prevailing party, in this
             case, the Employer, giving that party the benefit of any
             inferences which can logically and reasonably be drawn
             from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
             Based upon the facts presented in the instant matter, the UCBR adopted
the Referee’s findings, inter alia, that Claimant violated Employer’s policies on
timely contacting clients and managing schedules. The Referee specifically stated:

                                           9
               Claimant as an attorney for the Commonwealth was subject
               to the [R]ules of [P]rofessional [C]onduct, particularly
               [R]ules 1.3(1) and 1.3(2) regarding diligence,[13] and that []
               Claimant was both instructed by [] Employer, and was well
               aware that he had a professional requirement to provide a
               zealous defense as an advocate for the clients, and to
               organize his work so that minimal risk would accrue to the
               clients.

Referee Dec. at 2. The Referee determined that Employer proved that Claimant was
unable to perform his duties to Employer’s standards despite repeated warnings and
discipline and temporary improvements over several years, particularly regarding
client notice and scheduling and organizational difficulties. Despite that Claimant
was aware that he was to fix any scheduling conflicts that arose, and to timely notify

       13
         Pennsylvania Rule of Professional Conduct (Pa.R.P.C.) 1.3 provides: “A lawyer shall act
with reasonable diligence and promptness in representing a client.” Pa.R.P.C. Rule 1.3. The
Explanatory Comment states, in relevant part:

               [1] A lawyer should pursue a matter on behalf of a client despite
               opposition, obstruction or personal inconvenience to the lawyer, and
               take whatever lawful and ethical measures are required to vindicate a
               client’s cause or endeavor. A lawyer must also act with commitment
               and dedication to the interests of the client and with zeal in advocacy
               upon the client’s behalf. . . .

               [2] A lawyer’s work load must be controlled so that each matter can
               be handled competently.
Pa.R.P.C. Rule 1.3 Explanatory Comment.
        We acknowledge that “the Rules of Professional Conduct do not have the effect of
substantive law but, instead, are to be employed in disciplinary proceedings.” Smith v. Morrison,
47 A.3d 131, 135 (Pa. Super. 2012) (quoting In re Adoption of M.M.H., 981 A.2d 261, 272 (Pa.
Super. 2009)). Further, a Rule of Professional Conduct violation cannot create a presumption that a
legal duty has been breached. See Pa.R.P.C. Preamble; see also Smith. However, as the
Pennsylvania Supreme Court’s method of “exercis[ing] its exclusive constitutional authority to
regulate and supervise the conduct of the attorneys who are its officers[,]” the Referee in this case
did not err in recognizing that Claimant was on notice by both Employer and the Rules of
Professional Conduct of what was expected of him. Smith, 47 A.3d at 135. The Pennsylvania
Superior Court has reasoned that although the trial court and the appellate courts lack authority to
enforce the Rules of Professional Conduct, their import need not be ignored when directly relevant
to another matter. See Ignelzi v. Ogg, Cordes, Murphy and Ignelzi, LLP, 78 A.3d 1111 (Pa. Super.
2013).
                                                 10
clients of court appearances, he failed repeatedly to do so which culminated in his
July 14, 2014 discharge. The Referee discredited Claimant’s testimony that he was
overworked and overbooked or that his problems stemmed from medical conditions.
            The Referee concluded that Claimant “was more than negligent, more
than careless, and simply ignored the protocols of good lawyership.” Referee Dec. at
2.   The UCBR added: “[T]he [UCBR] finds and concludes that [Claimant]
deliberately failed to follow [Employer’s] policies. Further, the [UCBR] finds and
concludes that [Claimant’s] violations of [Employer’s] policies were not
commonplace and were not condoned by [Employer]. Finally, [Claimant] had no
good cause for his actions.” UCBR Order. Because there was substantial record
evidence to support the UCBR’s findings, the UCBR did not err by determining that
Claimant engaged in willful misconduct and was ineligible for UC benefits under
Section 402(e) of the Law.
            Claimant also argues that the UCBR erred by failing to hold that
Claimant was subjected to disparate treatment. We disagree.
            Disparate treatment is an affirmative defense by which a
            claimant who has engaged in willful misconduct may still
            receive benefits if he can make an initial showing that: (1)
            the employer discharged claimant, but did not discharge
            other employees who engaged in similar conduct; (2) the
            claimant was similarly situated to the other employees who
            were not discharged; and (3) the employer discharged the
            claimant based upon an improper criterion. Once the
            claimant has made this showing, the burden then shifts to
            the employer to show that it had a proper purpose for
            discharging the claimant. . . . ‘[T]he mere fact that one
            employee is discharged for willful misconduct and others
            are not discharged for the same conduct does not establish
            disparate treatment.’ [Am.] Racing [Equip.], Inc. v.
            Unemployment [Comp. Bd.] of Review, . . . 601 A.2d 480,
            483 ([Pa. Cmwlth.] 1991) (citing Bays v. Unemployment
            [Comp. Bd.] of Review, . . . 437 A.2d 72, 73 ([Pa. Cmwlth.]
            1981)).

                                        11
Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 970, 974-75
(Pa. Cmwlth. 2009) (citations and footnote omitted).
             Here, Claimant provided no evidence that he was the only one of
Employer’s public defenders that experiences scheduling conflicts and/or fails to
timely appear in court as a result. Further, the only evidence Claimant produced that
Employer’s other attorneys provide late notice to clients consisted of documentation
that after his June 26, 2014 cardiac episode, Employer sent notices and attempted
telephone and personal contact with his clients just days before their scheduled court
appearances. Moreover, Claimant’s testimony that “if I’m being double-scheduled[,]
there isn’t anyone in the office available; otherwise, they would have been scheduled
for it[,]” belies his claim that he is the only public defender who experiences
overscheduling. N.T. at 84.
             Claimant did not make the required showing that Employer discharged
him “but did not discharge other employees who engaged in similar conduct,” that
Claimant “was similarly situated to the other employees who were not discharged,”
or that Employer discharged Claimant “based upon an improper criterion.” Geisinger
Health Plan, 964 A.2d at 974. Under these circumstances, the UCBR did not err by
failing to hold that Claimant was subjected to disparate treatment.
             For all of the above reasons, the UCBR’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Matthew A. Bomberger,                  :
                        Petitioner     :
                                       :
                 v.                    :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 2420 C.D. 2014
                    Respondent         :


                                     ORDER

           AND NOW, this 29th day of September, 2015, the Unemployment
Compensation Board of Review’s November 24, 2014 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
