          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wendell C. Cheek,                       :
                    Petitioner          :
                                        :
             v.                         :      No. 621 C.D. 2016
                                        :      SUBMITTED: October 14, 2016
Unemployment Compensation               :
Board of Review,                        :
                 Respondent             :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                 FILED: February 28, 2017


             Claimant, Wendell C. Cheek, petitions pro se for review of the March
15, 2016, order of the Unemployment Compensation Board of Review that denied
his request for reconsideration of the Board’s February 16, 2016, order. That
February 16th order affirmed a referee’s decision finding him ineligible for
unemployment compensation benefits because his actions constituted willful
misconduct under Section 402(e) of the Unemployment Compensation Law.1 Only
the Board’s denial of Claimant’s request for reconsideration is before us due to the
fact that his “pro se letter evidencing an intent to appeal was filed on March 30,

    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
2016, which was more than thirty days after entry of the February 16, 2016 order,
but within thirty days of the Board’s denial of reconsideration.” Commonwealth
Court’s August 17, 2016, Order at 1.2 Pursuant to our order, therefore, we limited
Claimant’s “argument to whether the Board abused its discretion in denying
reconsideration.” Id. For the reasons that follow, we affirm.
               By way of brief background, the UC Service Center found Claimant
to be eligible for unemployment compensation benefits. At the subsequent hearing
before the referee, Claimant failed to appear and only Employer Community
Council Health Systems submitted evidence.                    Based on the testimony of
Employer’s witness, the referee concluded that Claimant’s conduct violated
Employer’s conduct policy and was wanton and willful such that it fell below the
standards of behavior that an employer could reasonably expect from its employees
and, therefore, constituted willful misconduct. Accordingly, noting, (1) Claimant’s
nonappearance at the hearing, despite being duly notified of the date, time, and
place; and (2) the absence of competent evidence in the record to establish good
cause or justification for his violation of Employer’s policies, the referee entered
an order denying Claimant benefits.
               Subsequently, Claimant filed an appeal of the referee’s order,
asserting, in pertinent part, as follows: “Dear Referee. I first would like to
apologize for missing this very important hearing. I was thinking Tuesday January
4th and learned that Monday afternoon was the 4th[.]” Certified Record (C.R.),

    2
       Accepting the Board’s argument that its order on the merits was not before us, we
nonetheless denied its application for summary relief. In limiting Claimant’s argument to
whether the Board abused its discretion in denying reconsideration, we cited Muehleisen v. State
Civil Service Commission, 443 A.2d 867, 869 (Pa. Cmwlth. 1982), aff’d, 461 A.2d 615 (Pa.
1983), holding that, “the filing of a Petitioner for Reconsideration does not operate to extend the
thirty day period for appeal of the original order.”



                                                2
Claimant’s Petition for Appeal from the Referee’s Decision, Item No. 10 at 2. The
Board rejected Claimant’s proffered explanation for failing to appear at the
referee’s hearing, affirming the referee’s order on the merits and concluding as
follows:
                    The claimant’s admitted mistake is not proper
             cause of his nonappearance at the referee’s hearing. The
             . . . Board, after considering the entire record in this
             matter, concludes that the referee’s decision was proper
             under the . . . Law. Therefore, the Board adopts and
             incorporates the referee’s findings and conclusions and
             enters the following Order:
                    The referee’s order is affirmed.
February 16, 2016, Order of the Board at 1.            In addition, the Board denied
Claimant’s subsequent request for reconsideration wherein he asserted that his
absence at the referee’s hearing was unintentional and requested a second chance
to present his case.     Claimant’s appeal to this Court followed and, for the
aforementioned reasons, we consider only the Board’s order denying Claimant’s
request for reconsideration.
             In reviewing a denial of a request for reconsideration, we are limited
to determining whether the agency abused its discretion by not granting
reconsideration. J.B. Steven, Inc. v. Dep’t of Transp., 627 A.2d 278, 280 (Pa.
Cmwlth. 1993). Absent fraud, bad faith, capricious action or an abuse of power,
this Court will not find an abuse of discretion. Id.
             In support of his position that the Board should have granted his
request for reconsideration, Claimant asserts that the Board failed to state a reason
for its denial and, therefore, did not provide proper cause for its denial. Further,
noting that hearings can be rescheduled and continued, Claimant takes umbrage
with the Board’s determination that his “single oversight concerning the hearing



                                          3
scheduled on the first business day of the New Year is cause to deny him a due
process right to a full hearing on the merits as to all the arguments concerning his
claim.” Claimant’s Brief at 15. Claimant’s position is without merit.
              Contrary to Claimant’s assertion, the Board did provide a reason for
rejecting his request. It determined that his admitted misreading of the hearing
notice did not constitute proper cause. As the Board observed in its brief to this
Court, Claimant did not aver that the hearing notice was misleading or confusing.
He merely maintained that he misread it. Upon inspection, the hearing notice in
question is quite clear, in pertinent part, providing:
              HEARING DATE & TIME
              Monday
              1/4/2016
              10:45 AM
              Eastern Time
C.R., December 21, 2015, Notice of Hearing, Item No. 7 at 1. The Board’s failure
to grant reconsideration under such circumstances does not constitute an abuse of
discretion.
              Accordingly, we affirm the Board’s order denying Claimant’s request
for reconsideration.


                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Senior Judge




                                           4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Wendell C. Cheek,                   :
                    Petitioner      :
                                    :
            v.                      :     No. 621 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                 Respondent         :


                                 ORDER


            AND NOW, this 28th day of February, 2017, the order of the
Unemployment Compensation Board of Review denying the request for
reconsideration of Petitioner, Wendell C. Cheek, is hereby AFFIRMED.




                                    _____________________________________
                                    BONNIE BRIGANCE LEADBETTER,
                                    Senior Judge
