          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Albright Precision, Inc.,       :
                    Petitioner :
                                :
           v.                   : No. 1830 C.D. 2016
                                : Submitted: March 24, 2017
Unemployment Compensation Board :
of Review,                      :
                    Respondent :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                  FILED: April 19, 2017


             Albright Precision, Inc. (Employer) petitions from the order of the
Unemployment       Compensation       Board of Review (Board) reversing                the
Unemployment Compensation Referee’s (Referee) decision finding Nicholas H.
Baloga (Claimant) ineligible for unemployment compensation (UC) benefits under
Section 402(e) of the Unemployment Compensation Law (Law)1 because his
discharge was due to willful misconduct. We affirm the decision of the Board.

      1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751–918.10. Section 402(e) provides, in pertinent part:

             An employe shall be ineligible for compensation for any week—

                                           ***
(Footnote continued on next page…)
               Claimant worked part-time as a laborer for Employer from November
2015 through July 14, 2016, when he was discharged after leaving work early.
Claimant filed for benefits with the Indiana UC Service Center (Service Center)
stating that he was discharged due to absenteeism. In the UC Questionnaire and in
a follow-up telephone call placed by the Service Center, Employer stated that it
discharged Claimant for willful misconduct2 because Claimant left work without
permission one-and-a-half hours before his shift was scheduled to end on July 14,
2016. Employer stated that Claimant had a history of tardiness and had received


(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
          Although the Law does not define the term “willful misconduct,” the courts have
defined it as:

               (1) wanton or willful disregard for an employer’s interests; (2)
               deliberate violation of an employer’s rules; (3) a disregard for the
               standards of behavior which an employer can rightfully expect of
               an employee; or (4) negligence indicating an intentional disregard
               of the employer’s interest or an employee’s duties or obligations.

Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965,
968 (Pa. Cmwlth. 2010). Where a claimant is discharged for a work rule violation, the employer
has the burden to show that the claimant was aware that the work rule existed and that the
claimant violated the rule. Id. The employer must also establish that the claimant’s actions were
intentional and deliberate, and the employee’s actions must be considered in light of all the
circumstances, including the reasons for his or her non-compliance with the employer’s
directives. Id.



                                                2
both a written and oral warning. The Service Center denied benefits because
Claimant had not shown good cause for his last absence. Claimant appealed,
contending that he had permission from Ernie, the supervisor in-training, to leave
work early on July 14, 2016.


              Before the Referee, Employer’s President, Clark LaBelle (LaBelle),
testified that he spoke to Claimant about his tardiness on May 2, 2016, and
Claimant was then issued a written notice for punching in late on June 23, 2016.3
He went on to testify that Claimant was discharged for leaving work early without
permission on July 14, 2016, when Claimant left work one-and-a-half hours before
his scheduled shift ended. LaBelle testified that he saw Claimant several times
during the day, and at no point did Claimant tell him that he needed to leave work
early. He stated that Claimant also failed to notify either of the two supervisors
who were working that day, John Sabitis or Matt Convin, that he had to leave
early. However, LaBelle admitted that Ernie, the individual Claimant spoke to
about leaving early, was training to be the floor supervisor.                 When LaBelle
discovered that Claimant had left the premises, he stated that he sent a text
message asking Claimant why he left. Claimant responded that he notified Ernie, a
supervisor in-training, that he needed to leave early. LaBelle admitted to agreeing
to work around Claimant’s schedule as far as certain days he needed to be off
work, but denied allowing Claimant to show up for and leave work when he
pleased.

       3
        Claimant’s time sheets and his written warning for tardiness were entered into evidence.
The written warning indicates that, pursuant to the employee handbook, any further violation
would result in immediate termination.



                                               3
               Claimant testified that he was hired as a part-time employee with the
understanding that LaBelle did not care what time he came into work or what time
he left for the day, that it was a flexible schedule. As to what led up to his
discharge, Claimant testified that he was on bereavement leave from July 11, 2016,
to July 13, 2016, to attend his great grandmother’s funeral. He stated that the next
day, July 14, 2016, he reported to work approximately one hour early and spoke to
Ernie, who he believed was a supervisor because Ernie gave the employees their
assignments and supplies. Claimant told Ernie he needed to leave early and Ernie
responded that this should not be a problem. When LaBelle sent him a text
message asking why he left early, Claimant responded that he just returned from
his great grandmother’s funeral and had to drop off his rental car and pick up his
dogs. LaBelle then sent Claimant a text message stating he was fired.


               Crediting LaBelle’s testimony, the Referee found that on the date in
question, Claimant left work early without permission, and he had previously
received both a verbal and written warning regarding his attendance. Because
Employer met its burden in establishing that Claimant’s discharge from
employment was for reasons which rise to the level of willful misconduct,
Claimant was ineligible for benefits under section 402(e) of the Law.


               Claimant appealed to the Board, which made its own findings and
reversed.4 The Board resolved the conflicts in testimony in favor of Claimant and

       4
         The Board is the ultimate fact-finder, with the power to substitute its judgment for that
of a referee on both disputed facts and credibility determinations. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1385-88 (Pa. 1985).



                                                4
found his testimony to be credible. Specifically, the Board found Claimant had
permission to be absent from work for bereavement leave between July 11, 2016,
and July 13, 2016; that he explained to his supervisor he needed to leave work
early on July 14, 2016, to return his rental car, pick up his dogs and go to his
doctor’s appointment; and that his supervisor gave him permission to leave early
from work.         The Board noted that Ernie, the supervisor who gave Claimant
permission to leave early, did not testify for Employer. Because Claimant was
discharged for leaving work early when, in fact, he did have permission, Employer
failed to meet its burden of establishing that the discharge was for willful
misconduct and the Board granted benefits.5 Employer then filed this petition for
review.6


                 On appeal, Employer contends that there is not substantial evidence to
support the Board’s decision because there is nothing in the record to support the
Board’s findings that Ernie was a supervisor and that Claimant received permission
to leave work early on the day in question. However, there is substantial evidence
to support that conclusion.


        5
            Employer filed a request for reconsideration which the Board denied on November 4,
2016.

        6
         Our scope of review of the Board’s decision is limited to determining whether an error
of law was committed, whether constitutional rights were violated, or whether the necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. § 704; Rock v. Unemployment Compensation Board of Review, 6 A.3d
646, 648 n.5 (Pa. Cmwlth. 2010). 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).



                                                5
            Claimant, who the Board found credible, testified as follows:

            Ernie at that time whether [LaBelle] wants to admit it or
            not was training to run the floor. He was doing certain
            jobs. He trained certain jobs, mostly on the paint line.
            We were following Ernie’s orders. Ernie had the list of
            what to do. Ernie had what we were going to paint all
            the time. Ernie had what paint we were going to use.
            Ernie would make – Ernie would tell us where we’re
            going to go also. . . . So that day I spoke to Ernie he said
            shouldn’t be a problem, I’ll go over there and paint. I
            didn’t speak to anybody else because I thought that was
            good enough. I thought he was a supervisor. I didn’t – I
            thought – when they had meetings, monthly meetings,
            Ernie would go to these monthly meetings. They had
            monthly meetings in a quarter so for [LaBelle] to say that
            Ernie was not in a supervisor position is simply not true
            because he was, because the last monthly meeting they
            had in the boardroom, Ernie attended. . . . Ernie never
            told me there was a problem. Never gave me one
            instance that there’d be a problem leaving that day.


(Reproduced Record (R.R.) at 50a.)


            Moreover, Employer’s own witness admitted that at the time Claimant
was discharged, Ernie was training to be the floor supervisor.


            “[A] violation of an employer’s rule or demand is not willful
misconduct ‘if the evidence shows that the employe’s action was justifiable and
reasonable in light of all circumstances and was taken with good cause.’” Fritz v.
Unemployment Compensation Board of Review, 446 A.2d 330, 332 (Pa. Cmwlth.
1982) (quoting Kindrew v. Unemployment Compensation Board of Review, 388
A.2d 801, 802 (Pa. Cmwlth. 1978)). Given the testimony adduced at the hearing,

                                         6
the Board had substantial evidence to find that Ernie had the authority to allow
Claimant to leave work early and/or Claimant’s belief that Ernie had such authority
was reasonable and, therefore, he was not discharged for willful misconduct.7, 8


               Accordingly, the order of the Board is affirmed.



                                                     ______________________________
                                                     DAN PELLEGRINI, Senior Judge


       7
         Because Employer failed to meet its burden of proving willful misconduct, the burden
never shifted to Claimant to offer good cause to justify his leaving early and we will not address
Employer’s argument on this issue.

       8
         Whether a claimant’s behavior rises to the level of willful misconduct is a question of
law subject to review by this Court. Fritz, 446 A.2d at 332. While not raised by Employer on
appeal, we note that our decision in Grand Sport Auto Body v. Unemployment Compensation
Board of Review, 55 A.3d 186 (Pa. Cmwlth. 2012), is inapplicable. In that case, the claimant had
a history of tardiness and even after being warned twice, was tardy or absent without a valid
excuse 19 times. The claimant then requested a week off to get married in Mexico, which the
employer approved. The claimant’s return flight was overbooked and he missed an extra day of
work because he was stranded in Mexico. When the claimant returned to work, his employer
suspended and then discharged him because of his history of attendance issues and tardiness.
The employer’s witness testified that claimant was not discharged because of the final absence
but because of a series of events over the course of two years, and that employer had already
decided to discharge claimant prior to his final absence. The Board indicated that employer
discharged claimant due to his record of attendance, but then held that there was no willful
misconduct because claimant’s most recent absence was justified. On appeal, this Court
reversed the finding that claimant was not ineligible for benefits, holding “that the Board erred in
focusing solely on [c]laimant’s last absence, rather than on [c]laimant’s long history of tardiness
and absenteeism, which was the reason [e]mployer discharged [c]laimant. . . .” Id. at 187. The
present matter is distinguishable as the Board did not find Claimant had engaged in a pattern of
misconduct or was discharged due to a history of absenteeism or tardiness. Rather, the Board
specifically found that Claimant was discharged for leaving work early without permission on
July 14, 2016. Because Claimant’s attendance history was not the reason for his discharge,
Grand Sport Auto is not controlling.


                                                 7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Albright Precision, Inc.,       :
                    Petitioner :
                                :
           v.                   : No. 1830 C.D. 2016
                                :
Unemployment Compensation Board :
of Review,                      :
                    Respondent :




                                   ORDER


             AND NOW, this 19th day of April, 2017, the order of the Unemployment
Compensation Board of Review in the above-captioned matter is hereby affirmed.



                                          ______________________________
                                          DAN PELLEGRINI, Senior Judge
