           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig P. Wood, Jr.,                           :
                            Petitioner        :
                                              :
                      v.                      :    No. 1096 C.D. 2015
                                              :    SUBMITTED: November 25, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: March 10, 2016


              Claimant, Craig P. Wood, Jr., petitions this Court for review of an
order of the Unemployment Compensation Board of Review (Board), which
reversed a referee’s decision and determined that Wood is ineligible for benefits
under Section 402(e) of the Unemployment Compensation Law (Law)2 for reasons
of willful misconduct connected with his work.

    1
       This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
     2
       Act of December 5, 1936, Second Ex. Sess., P.L. 1937 (2897), as amended, 43 P.S. §
802(e). Section 402(e) of the Law provides that an employee is ineligible for compensation for
any week in which his unemployment is due to discharge for willful misconduct connected with
his work.
               The Board, which is the ultimate factfinder in cases of unemployment
compensation law,3 found as follows. Claimant last worked as a full-time sales
associate for Moorehead Communications (Employer) from September 2014
through February 19, 2015. On Claimant’s last workday, another employee’s car
was parked outside of Employer’s location in a strip mall. Employer’s sales
manager noticed that the car had writing on it, specifically: “I love d*cks.” Board
Decision, No. B-578818, dated May 27, 2015, at 1, Finding of Fact (FF), No. 4.
The other employee filed a formal complaint, and Claimant admitted responsibility
for writing on the car. Claimant wrote on the car while he was on his lunch break,
using a washable window marker. Employer’s sales manager was unaware of jokes
being made at the office and was also unaware that the employee who owned the
car joked about “gays, women or fat people.” Id., FF, No. 10. Employer considered
Claimant’s writing to be vandalism and harassment in violation of its policy.
Claimant was discharged for writing “I love d*cks” on his co-worker’s car. Id. at 2,
FF, No. 11.
               Afterwards, the Department of Labor and Industry determined that
Claimant was ineligible for benefits under section 402(e). On appeal, the referee
reversed, reasoning that Claimant did not intend to violate Employer’s rules and
that Claimant’s conduct did not rise to the level of willful misconduct under the
statute. On appeal, the Board reversed the referee’s decision, stating that, even if
Employer failed to prove the violation of a specific work policy against vandalism
and harassment, the nature of Claimant’s conduct amounted to willful misconduct
on its face. Specifically, the Board reasoned that Claimant’s act of writing “I love
d*cks” on his co-worker’s car while it was parked in the lot outside Employer’s

   3
       See Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383 (Pa. 1985).



                                             2
facility evinced a wanton and willful disregard of Employer’s interest and
disregarded the standards of behavior that Employer had a right to expect of
Claimant. The Board further noted that Claimant failed to prove good cause for his
misconduct because: (1) his testimony that jokes of this kind were common at the
workplace was not credited; and (2), even if such jokes were common at the
workplace, Employer was unaware that jokes of this type were being made.
Accordingly, the Board reversed the referee’s decision and denied Claimant
benefits under section 402(e). This appeal followed.
             On appeal, Claimant first argues that the Board erred in deciding that
he was ineligible for benefits in light of the Board’s “admission” that Employer
failed to meet its burden of establishing work rules or policies against harassment
or vandalism. Claimant also argues that the Board erred in deciding that Claimant
committed willful misconduct based solely on behavior that occurred on non-
employer time and on non-employer property. Finally, Claimant asserts that the
Board erred in deciding that Claimant committed willful misconduct based on
vandalism because there is no proof of either vandalism or harassment by
Claimant.
             The employer bears the burden to demonstrate that a claimant has
been discharged for willful misconduct.4 Orend v. Unemployment Comp. Bd. of
Review, 821 A.2d 659, 661 (Pa. Cmwlth. 2003). Although the Law does not define
willful misconduct, the term has been interpreted to include wanton and willful
disregard of an employer’s interests, deliberate violation of an employer’s work

    4
         Whether a claimant’s conduct amounts to willful misconduct rendering a claimant
ineligible for unemployment compensation benefits is a question of law subject to plenary
review. Royster v. Unemployment Compensation Board of Review, 34 A.3d 324, 327 (Pa.
Cmwlth. 2011).



                                           3
rules, disregard of standards of behavior that an employer can rightfully expect of
an employee, or negligence that indicates intentional disregard of an employer’s
interest or an employee’s duties and obligations. Smith v. Unemployment Comp.
Bd. of Review, 967 A.2d 1042, 1046 (Pa. Cmwlth. 2009). An employer is not
limited to proving the violation of a work rule in order to establish willful
misconduct. Kronstadt v. Unemployment Comp. Bd. of Review, 489 A.2d 310, 320
(Pa. Cmwlth. 1984) [providing, “Regardless of whether Kronstadt’s employer had
an established rule concerning [his] actions, the behavioral standard is obvious and
Kronstadt’s conduct was so inimical to his employer’s best interests as to
constitute willful misconduct”]; Biggs v. Unemployment Comp. Bd. of Review, 443
A.2d 1204, 1206 (Pa. Cmwlth. 1982) [providing, “We also reject Biggs’ contention
that, the employer not having an established rule against sleeping on the job and
this being his first peccadillo, his behavior did not amount to willful misconduct”
(footnotes omitted)]. If an employer meets its burden of establishing willful
misconduct, the burden of proof shifts to the claimant to demonstrate good cause
for his action. Royster v. Unemployment Comp. Bd. of Review, 34 A.3d 324, 327
(Pa. Cmwlth. 2011).
            In the matter sub judice, we disagree with Claimant’s first assertion
that because the Board somehow “admitted” that Employer failed to meet its
burden of proving a work rule or policy against harassment or vandalism, the
Board likewise erred in determining that Claimant was not eligible for benefits.
Instead, the Board merely acknowledged that, even if Employer failed to establish
the existence of such a work rule or policy, Claimant could still be deemed
ineligible for benefits because his work-related conduct was so inimical to
Employer’s best interests that discharge was the natural result. See Board Opinion



                                         4
at 2. The Board’s acknowledgement in this regard accords with relevant case law,
as set forth above. See, e.g., Kronstadt. Thus, Claimant’s first argument lacks
merit.
             Claimant next argues that the Board erred in deciding he committed
willful misconduct based on conduct that occurred on non-employer time and on
non-employer property. The law is clear, however, that “there is no requirement
under section 402(e) that an employee’s work-related misconduct occur on the
employer’s premises or precisely while on duty.” Williams v. Unemployment
Comp. Bd. of Review, 596 A.2d 1191, 1192 (Pa. Cmwlth. 1991) [relying on Caruso
v. Unemployment Comp. Bd. of Review, 551 A.2d 1167 (Pa. Cmwlth. 1998)]. For
this reason, Claimant’s second argument also lacks merit.
             Finally, Claimant argues that the Board erred in reaching a
determination of willful misconduct based on vandalism because there is no proof
that Claimant engaged in vandalism or harassment. In this vein, Claimant asserts
that his actions were nothing more than a joke consistent with the jokes that were
common in Employer’s office. Claimant relies on the fact that he used washable
window marker to write his commentary. He also points out that he was never
arrested for this behavior. Claimant’s argument, however, misses the mark. We
have held that “‘vulgarity, even in a single instance, may constitute willful
misconduct where the vulgarity is unjustified, unprovoked, unnecessary or
uncalled for under the circumstances.’” Dodson v. Unemployment Comp. Bd. of
Review, 437 A.2d 1080, 1082 (Pa. Cmwlth. 1981) (citation omitted). As previously
stated, the Board did not credit Claimant’s testimony that jokes of this type were
common in Employer’s workplace. The Board further determined that Employer
was unaware that any such jokes were being made. Thus, to the extent he argues
otherwise, Claimant also failed to establish good cause for his conduct in writing “I



                                         5
love d*cks” on his co-worker’s car, even in the unlikely event that good cause for
such conduct could be held to exist.
            Accordingly, we affirm.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                         6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig P. Wood, Jr.,                        :
                           Petitioner      :
                                           :
                      v.                   :     No. 1096 C.D. 2015
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :


                                        ORDER


            AND NOW, this 10th day of March, 2016, the order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Craig P. Wood, Jr.,                         :
                                            : No. 1096 C.D. 2015
                             Petitioner     : Submitted: November 25, 2015
                                            :
                      v.                    :
                                            :
Unemployment Compensation                   :
Board of Review,                            :
                                            :
                             Respondent     :


BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                                     FILED: March 10, 2016

               Because I would conclude that Employer failed to prove that Claimant
committed willful misconduct under section 402(e) of the Unemployment
Compensation Law (Law),1 I respectfully dissent.


               I believe that the Board erred in concluding that Claimant committed
willful misconduct on the ground that his conduct amounted to vandalism or
harassment. It is undisputed that Claimant used a washable window marker to write
the remark on his co-worker’s car and caused no damage to the car. Additionally, the
record contains no evidence that Claimant engaged in any type of harassing conduct

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
toward his co-worker while at work, either before or after the car-writing incident.
The incident did not occur in the workplace or on company time. Claimant wrote on
his co-worker’s car during his lunch break. Moreover, I disagree with the majority’s
reliance on case law involving an employee’s use of vulgarity in the workplace, (see
Maj. Op. at 5), because the Board made no finding of vulgarity here.


              Even if the Board had made a finding of vulgarity, I would still conclude
that Claimant did not commit willful misconduct. When considering whether the use
of vulgarity amounts to willful misconduct, we must consider “the context in which
the profanity or other proscribed language [was] used.” Brown v. Unemployment
Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012). We will not
find willful misconduct “where use of the proscribed language was . . . de minimis in
nature.” Id. Here, the referee found that Claimant credibly testified that the remark
was intended merely as a joke between Claimant and his co-worker. The Board did
not reject this credibility determination. Thus, given the facts of this case, I believe
that Claimant’s written remark on his co-worker’s car was de minimis.2


              Unlike the majority, I cannot conclude, based on the evidence of record,
that Claimant’s conduct was inimical to Employer’s interests. Claimant’s conduct
was meant as a joke between him and his co-worker and had nothing to do with
Employer. While Claimant’s conduct was questionable, it did not rise to the level of


       2
         Furthermore, Claimant’s conduct was directed toward a co-worker, not a supervisor. This
court has stated that “[a]n employee’s use of abusive, vulgar or offensive language with a superior
is a form of insubordination that can constitute willful misconduct.” Brown, 49 A.3d at 937
(emphasis added); see Scott v. Unemployment Compensation Board of Review, 105 A.3d 839, 846
(Pa. Cmwlth. 2014), appeal denied, __ A.3d __ (Pa., No. 22 WAL 2015, filed August 21, 2015).



                                            RSF - 2 -
willful misconduct under section 402(e) of the Law. For these reasons, I would
reverse the Board’s order.




                                     ___________________________________
                                     ROCHELLE S. FRIEDMAN, Senior Judge




                                  RSF - 3 -
