           IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Shannon Bell,                                :
                                             :
                            Petitioner       :
                                             :
              v.                             :    No. 1324 C.D. 2015
                                             :
Unemployment Compensation                    :    Submitted: November 25, 2015
Board of Review,                             :
                                             :
                            Respondent       :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                   FILED: April 26, 2016

       Shannon Bell (Claimant) petitions for review of an Order of the
Unemployment Compensation (UC) Board of Review (Board) affirming a UC
Referee’s (Referee) Decision finding Claimant ineligible for UC benefits pursuant
to Section 402(e) of the UC Law (Law).2 On appeal, Claimant argues that the

       1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
        2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Section 402(e) provides that an employee is ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful misconduct
connected with his work.” Id.
Board erred in finding him ineligible because: (1) Waste Management (Employer)
did not satisfy its burden of proving willful misconduct because he did not
intentionally or deliberately violate Employer’s work rule; (2) even if Claimant did
violate the work rule, he had good cause for doing so; and (3) Employer
unreasonably applied its work rule.                Because we conclude that Claimant
established good cause for not complying with Employer’s work rule, we reverse.


       Claimant was employed by Employer as a driver from January 6, 2014 until
he was discharged on November 28, 2014 for violating Employer’s rule requiring
employees to report accidents or property damage to Employer immediately.
Claimant filed an internet claim for UC benefits on January 4, 2015, wherein he
stated that he was discharged for causing “Damage to property . . . The mailbox
came off the post. No damage to the truck.” (Internet Initial Claims, R. Item 23.)
In response to Claimant’s claim, Employer stated that Claimant was discharged,
not for the accident, “but for not reporting it immediately to the manager.”4
(Employer’s Separation Information, R. Item 3.) The UC Service Center found
Claimant ineligible for benefits pursuant to Section 402(e) of the Law. (Notice of
Determination, R.R. at 3A.)


       Claimant appealed the UC Service Center’s determination to the Referee,
and a hearing was held on April 23, 2015. Employer appeared with its Tax
Consultant Representative (Tax Consultant) and one witness, Employer’s

       3
          References to the reproduced record are designated as “R.R. at ___.” References to the
certified record are designated as “R. Item ___.”
        4
           Employer also stated that Claimant did not intentionally damage the equipment or
property. (Employer’s Separation Information, R. Item 3.)

                                               2
Residential Round Manager (Round Manager), as well as documentary evidence.
Claimant appeared pro se with one witness.5


       Round Manager testified that Claimant was “discharge[d] for failure to
report an accident immediately to his route manager.” (Hr’g Tr. at 5, R.R. at 20A.)
Round Manager further testified that he received notice of the accident when “the
driver that [Claimant] was with reported it at the check-in window to [his] opt-
specs staff specialist, . . . and after it was reported by [Claimant’s coworker],
Claimant had c[o]me up behind him and stated yes, I hit a mailbox.” (Hr’g Tr. at
6, R.R. at 21A.) Round Manager stated that “[i]t’s a driver-driver team so they’re
both responsible for the truck.” (Hr’g Tr. at 6-7, R.R. at 21A-22A.) Round
Manager testified that Claimant had notified him earlier on the day of the accident
via Claimant’s cellphone that the roads were slippery, that it was starting to snow,
and that it was starting to stick on the roads. Round Manager indicated that he did
not receive any resident complaints as a result of the accident.6 (Hr’g Tr. at 7-8,
R.R. at 22A-23A.) When asked if Claimant had any response or reaction upon
learning of his termination, Round Manager stated “[w]ell . . . it wasn’t a very fun
event. I mean yes he was pretty sad.” (Hr’g Tr. at 9, R.R. at 24A.)


       Claimant testified that he was aware of Employer’s rule, that he did not
comply with the rule, and that he could be discharged for violating the rule. (Hr’g


       5
          Claimant’s mother, Linda Bell, testified as to Claimant’s issue with filing biweekly
claims due to the information being sent to the wrong address. (Hr’g Tr. at 10-11, R.R. at 25A-
26A.)
        6
          The UC Service Center apparently incorrectly found that “Employers [sic] customer
called and reported the accident.” (Notice of Determination, R.R. at 3A.)

                                              3
Tr. at 9-10, 14, R.R. at 24A-25A, 29A.) However, Claimant explained that he did
not attempt to contact his Employer immediately after the accident because he
relied on the advice of his driving partner, who had been there for five or six years.
Claimant then described the circumstances that he faced that day:

      I was soaking wet so I decided to drive. We’re five stops from being
      done. The stop on the hill the truck, I pulled the e-brake. The truck
      slides. I hit the mailbox. There was no way I could get around it. I
      knock on the door and no one answers. So I asked the employe[e]
      that’s been there longer than me . . . what should I do. Well we can
      just tell them when you get in. . . . So I’m thinking you’ve been there
      longer than me. . . . You’re a veteran employee. . . . So we got in and
      we told. He was in front of me because I was driving the truck. I had
      to do the paperwork. He got to the front counter before I did but I
      admitted that I did do it.

(Hr’g Tr. at 9, R.R. at 24A.) Additionally, Claimant maintained throughout his
testimony that he did not have a working phone to use at the time of the accident to
contact his Employer. He stated, in pertinent part, that:

      [M]y phone was soaking wet from being on the back of the truck. It
      had been on my hip all day. So I just turned it off so I didn’t mess
      that up. . . . [My coworker’s phone] was dead too. He didn’t charge
      his personal phone. Mine had got [sic] soaking wet. His was dead
      and our work phone was dead.

(Hr’g Tr. at 10, R.R. at 25A.) Tax Consultant asked Claimant “if this other
employee told you that you had to call would you have turned on your phone . . .
and made an attempt?” (Hr’g Tr. at 12, R.R. at 27A.) Claimant responded that if
he absolutely had to call, he “would have knocked on any door possible to make
sure [he] called.” (Hr’g Tr. at 12, R.R. at 27A.) Claimant concluded his testimony
by stating that he was willing to pay for the damaged mailbox and that he did not

                                          4
know the situation was going to go as far as it did and result in his termination.
(Hr’g Tr. at 15, R.R. at 30A.)


        Based on the parties’ testimony, the Referee made the following findings of
fact:


        1. The claimant was last employed as a driver by Waste Management and
           his last day of work was 11/28/14.

        2. The claimant was aware of the employer’s policy requiring that accidents
           or property damage be reported to the employer immediately.

        3. On 11/26/1[4], while backing up the truck, the claimant knocked over a
           mailbox.

        4. The claimant did not report the incident to the employer until he returned
           from the route.

        5. The claimant questioned a more senior employee, who was not a
           supervisor, as to what they should do and the other employee said they
           should report it when they got back.

        6. The claimant was discharged for violating the employer’s policy.

(Referee Decision, Findings of Fact (FOF) ¶¶ 1-6.)


        The Referee determined that Employer satisfied its burden of proving willful
misconduct under Section 402(e) of the Law for violating Employer’s policy.
(Referee Decision at 1-2.) With respect to whether Claimant had good cause for
his conduct, the Referee concluded:

        The claimant was aware that the employer’s policy required him to
        report an accident or property damage immediately. Rather than
                                          5
       follow policy, the claimant followed the advice of a coworker and did
       not report the incident until he returned to the office. The claimant
       has not established adequate justification for his failure to follow the
       employer’s policy, and is therefore ineligible for benefits under
       Section 402(e) of the Law.

(Referee Decision at 2.)


       Claimant appealed the Referee’s Decision to the Board,7 which adopted and
incorporated the Referee’s findings of fact and conclusions of law and affirmed the
Referee’s Decision finding Claimant ineligible for UC benefits pursuant to Section
402(e) of the Law. (Board Order.) Claimant now petitions this Court for review of
the Board’s Order.8


       In support of his appeal, Claimant argues that the Board erred in affirming
the Referee’s finding that Claimant engaged in willful misconduct by violating
Employer’s work rule because he did not intentionally or deliberately violate that
rule. In the alternative, Claimant argues that the Board erred, as a matter of law, in
affirming the Referee’s finding that Claimant did not have good cause for violating

       7
          Claimant appealed to the Board, pro se, on May 11, 2015. (Petition for Appeal, R. Item
11.) On May 18, 2015, the Board was notified via letter that counsel had been retained to
represent Claimant in his appeal to the Board. (Claimant’s Counsel’s Entry of Appearance and
Request for Transcript of Testimony and Permission to File a Brief, R. Item 12.) On June 2,
2015, the Board gave permission to Claimant’s counsel to file a brief on Claimant’s behalf.
(Board’s Response to Claimant’s Request for Transcript of Testimony and Permission to File a
Brief, R. Item 13.) On June 16, 2015, Claimant’s counsel filed a Brief in Support of Claimant’s
Unemployment Appeal. (Brief in Support of Claimant’s Unemployment Appeal, R. Item 14.)
        8
          “The Court’s review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, whether a practice or procedure of the Board
was not followed or whether the findings of fact are supported by substantial evidence in the
record.” Western and Southern Life Insurance Co. v. Unemployment Compensation Board of
Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).

                                               6
Employer’s work rule.      Lastly, Claimant argues that Employer unreasonably
applied the work rule to Claimant.


      Section 402(e) of the UC Law provides, in pertinent part, that “[a]n employe
shall be ineligible for compensation for any week . . . [i]n which his unemployment
is due to his discharge or temporary suspension from work for willful misconduct
connected with his work.” 43 P.S. § 802(e). While the Law does not define
“willful misconduct,” our Court has defined it as:

      (1) a wanton or willful disregard for an employer’s interests; (2) a
      deliberate violation of an employer’s rules; (3) a disregard for
      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). “If the employer alleges willful misconduct
because the claimant violated a work rule, the employer must prove both the
existence of the rule[,] its violation,” Caterpillar, Inc. v. Unemployment
Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997), and “whether the
rule or policy is reasonable in light of all the circumstances,” Spirnak v.
Unemployment Compensation Board of Review, 557 A.2d 451, 453 (Pa. Cmwlth.
1989). Reasonableness is determined by “consider[ing] whether application of the
rule or policy under the circumstances is fair and just and appropriate to
accomplish a legitimate interest of the employer.” Spirnak, 557 A.2d at 453. A
claimant must also be “made aware of the existence of the work rule.” Bruce v.
Unemployment Compensation Board of Review, 2 A.3d 667, 671 (Pa. Cmwlth.
2010).


                                         7
       If the employer satisfies its burden, the burden shifts to the employee to
show that he or she had good cause for the conduct. McKeesport Hospital v.
Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth.
1993).     “A claimant has good cause if his or her actions are justifiable and
reasonable under the circumstances.” Docherty v. Unemployment Compensation
Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). “Whether a
claimant has good cause to violate an employer’s rule or policy is a question of law
subject to this [C]ourt’s review and should be viewed in light of all of the attendant
circumstances.” Id. at 1208.


       Claimant first argues that he did not intentionally or deliberately violate
Employer’s work rule such that it would be detrimental to Employer’s interests.
(Claimant’s Br. at 10-12.) The Board, on the other hand, argues that its findings of
fact are supported by substantial evidence of record because Claimant was aware,
and admitted he was aware, of the rule, and he followed the rule before. (Board’s
Br. at 5.) Claimant does not dispute the existence of Employer’s work rule, his
awareness of the work rule, or that he technically did not comply with the work
rule. (Hr’g Tr. at 9-10, 14, R.R. at 24A-25A.) Rather, Claimant argues that
because his actions were not an intentional or deliberate violation of the work rule,
they cannot be considered willful misconduct. Claimant acknowledged that he
previously followed Employer’s work rule by immediately reporting his
involvement in another accident to his manager.9 (Hr’g Tr. at 13, R.R. at 28A.)

       9
          Claimant was involved in another accident where he backed up into another car.
Claimant immediately reported the accident to his supervisor and received a written warning on
June 2, 2014. (Counseling and Warning Document, R. Item 3.) Though, when asked if Claimant
was discharged for “one incident alone or a series of incidents,” Round Manager testified that
                                                                             (Continued…)
                                              8
       The fact that Claimant knew what Employer’s rule stated and did not strictly
comply with it does not inescapably require a finding of willful misconduct. In his
brief to this Court, Claimant argues that he did report the accident immediately
upon his return to the office. (Claimant’s Br. at 11-12, 14.) When asked what
“immediate” means to the Employer, Round Manager testified that “[a]s soon as
the incident happens[,] the driver is to get into a safe location, out of harms [sic]
way, and [] report it to his route manager.” (Hr’g Tr. at 5, R.R. at 20A.) Claimant
did not testify that he reported the accident “immediately,” or specifically argue
that his reporting under these circumstances complied with the work rule, and the
Board made no specific findings in this regard. While we thus question whether
Claimant’s decision not to call Employer under these circumstances would
constitute a willful violation of Employer’s rule, even if it did, we conclude that
Claimant established good cause for not calling.


       As previously noted, “[w]hether a claimant has good cause to violate an
employer’s rule or policy is a question of law subject to this [C]ourt’s review and
should be viewed in light of all of the attendant circumstances.” Docherty, 898
A.2d at 1208. Therefore, we review Claimant’s contention that he had good cause
under this standard. Here, snow was falling and the roads were slippery. Claimant
“did not attempt to hide or otherwise evade responsibility for the accident,” he
attempted to notify the owner of the mailbox, who was not home, he finished his
route and returned to the office and immediately informed his supervisor.
(Claimant’s Br. at 14.) Claimant asked the advice of the other, more senior, driver


Claimant’s discharge was based upon “[j]ust th[is] one incident alone.” (Hr’g Tr. at 6, R.R. at
21A.)

                                              9
working with him who advised him that they could notify their supervisor when
they returned to the office. (Claimant’s Br. at 10-11.) Claimant further contends
that he was “not in a position to immediately contact his supervisor,” as his and the
other driver’s personal cell phones, as well as their work phone, were inoperable.
(Claimant’s Br. at 14.) Thus, Claimant contends that even though he did not
comply with Employer’s work rule, his behavior was reasonable and justifiable
under the circumstances.


      The Board contends that Claimant unjustifiably violated Employer’s work
rule because he relied on the “misguided” advice of his coworker in not complying
with the rule, relying on Rothstein v. Unemployment Compensation Board of
Review, 114 A.3d 6 (Pa. Cmwlth. 2015). The Board also contends that Claimant
waived the inoperable cell phone argument by not including it in his brief to the
Board, and, even if this argument was not waived, his alleged cell phone problem
was not the real reason Claimant did not call his supervisor. Instead, the Board
argues that Claimant did not call because he relied on his coworker’s advice, as
evidenced by Claimant’s testimony:

      So I thought he would not give me the wrong information that I
      couldn’t tell when I got there. If that’s the case I would have stayed
      right there and made sure I got [sic] contact with these guys but he
      told me it was okay. I'm thinking all right. I guess it’s okay.


(Hr’g Tr. at 9-10, R.R. at 24A.)


      We have reviewed Claimant’s brief to the Board to determine whether
Claimant waived his argument that his inoperable phone affected his ability to call

                                         10
Employer, and conclude that he did not. In the Statement of Relevant Facts in his
brief to the Board, he stated “[Claimant] also presented undisputed testimony that
[his coworker’s] cellphone and their work phone were both dead, and he had
turned his phone off and placed it in his bag because it was soaking wet from the
snow.” (Brief in Support of Claimant’s Unemployment Appeal at 3, R. Item 14.)
His Legal Argument referenced that he “had good cause for violating the rule
under the circumstances he was under,” and asserted that his “means of
communicating with Employer w[ere] substantially limited.” (Brief in Support of
Claimant’s Unemployment Appeal at 6, 12.) We find that Claimant sufficiently
raised the inoperable phone issue to the Board on appeal.


      The Board argues that Claimant unjustifiably relied on the advice of his
coworker, as did the claimant in Rothstein. In Rothstein, a Verizon employee, who
was required to enter customers’ homes, was found not to have good cause for
failing to report his arrest for stalking, harassment, and indecent exposure as
required by his employer’s rules. Rothstein, 114 A.3d at 8. The employee did not
report his arrest to the employer, on the advice of his union representative not to
tell anyone about his arrest. Id. at 8. The Court concluded that “the policy put the
responsibility to report relevant off-the-job misconduct on the individual
employee.” Id. at 11.


      Claimant, instead, draws the Court’s attention to Williams v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 289 C.D. 2013, filed August 7,




                                        11
2013),10 a case with similar facts to the instant matter. In Williams, a postal worker
struck a customer’s motorcycle with Employer’s vehicle, was suspended pending
an investigation of the accident, was then discharged for not reporting the accident
to his supervisor immediately, against Employer’s policy, and was found ineligible
for benefits. Id., slip op. at 1. The claimant did not dispute the existence of the
policy, his awareness, or that he also technically did not comply with the policy.
Id., slip op. at 2. The Court held that the unemployment claimant acted justifiably
under the circumstances because: he did not hide his involvement in the accident;
he searched for and notified the customer, who called the post office about the
accident; he tried to call his supervisor; he finished his route because he was
running late after looking for the customer; and he went to his supervisor’s office
after he returned to the post office to report the accident, but was told his
supervisor had already heard about the accident from the customer. Id., slip op. at
2. Claimant asserts that his actions, like the actions in Williams, should be found
justifiable.


       We find that the circumstances here are more similar to Williams than to
Rothstein. As in Williams, the Claimant here did not try to hide the fact that he
was involved in the accident. To the contrary, as in Williams, Claimant attempted
to notify the resident, as he testified that he “knocked on the [resident’s] door and
no one [was] there.” (Hr’g Tr. at 10, R.R. at 25A.) Although the claimant in
Williams unsuccessfully attempted to notify his supervisor after the accident

       10
           Pursuant to Section 414 of this Court’s Internal Operating Procedures, an unreported panel
decision issued by this Court after January 15, 2008 may be cited “for its persuasive value, but not as
binding precedent.” 210 Pa. Code § 69.414(a).



                                                 12
Claimant here had substantially limited means of communicating with his
supervisor. Given the bad weather and phone situation, Claimant relied on his
more senior coworker’s advice that they could report the accident to their
supervisor upon their return. Just as in Williams, Claimant finished his route
because he only had five stops left, quickly completed the paperwork required of
him upon his return, and immediately informed Employer about the accident upon
his return to the office. While the customer in Williams called the employer to
report the accident, here, the resident did not call Employer to report the accident.
We conclude that, “in light of all of the attendant circumstances,” Claimant’s
actions in completing his work responsibilities actually furthered the interests of
Employer just as the claimant’s actions in Williams, and unlike the claimant’s
actions in Rothstein. Docherty, 898 A.2d 1208. Unlike in this case and Williams,
where the claimants reported to the employer immediately upon their return to the
office, the claimant in Rothstein, did not report his arrest, or subsequent
conviction, to his supervisor at all, and continued to enter customers’ homes while
having been arrested for crimes which were inimical to the best interests of his
employer. The claimant’s actions in Rothstein, potentially placed “customer[s’]
safety, comfort and confidence in Verizon services” at risk, unlike the Claimant’s
actions here. Rothstein, 114 A.3d at 10.


      Under these circumstances, as in Williams, we conclude that the Board
erred, as a matter of law, in determining that Claimant did not have good cause for
not complying with Employer’s work rule. Pursuant to the above principles, we
consider the reasonableness of Claimant’s conduct “in light of all of the attendant
circumstances.” (Hr’g Tr. at 6, R.R. at 21A); Docherty, 898 A.2d at 1208-09.


                                           13
Doing so, we find that Claimant had good cause for his noncompliance with
Employer’s work rule and the Board erred in finding him ineligible for UC
benefits.


      For the foregoing reasons, the Board’s Order is reversed.




                                     ________________________________
                                     RENÉE COHN JUBELIRER, Judge




                                        14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Shannon Bell,                         :
                                      :
                       Petitioner     :
                                      :
           v.                         :   No. 1324 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER

     NOW, April 26, 2016, the Order of the Unemployment Compensation
Board of Review entered in the above-captioned matter is REVERSED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
