                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Scott Caceres,                            :
                  Petitioner                   :
                                               :   No. 1307 C.D. 2018
              v.                               :
                                               :   Submitted: February 8, 2019
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                                     FILED: April 5, 2019


              John Scott Caceres (Claimant) petitions for review, pro se, of the August
8, 2018 order of the Unemployment Compensation Board of Review (Board) affirming
a referee’s decision that found Claimant ineligible for unemployment compensation
(UC) benefits pursuant to section 402(e) of the Unemployment Compensation Law
(Law).1
                               Facts and Procedural History
              Claimant worked as a full-time sales consultant with Airport Road Motors
HO LLC (Employer) until March 1, 2018, when he was discharged for the repeated


       1
        Section 402(e) of the Law, 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 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, irrespective of whether or not
such work is ‘employment’ as defined in this act.” 43 P.S. §802(e).
offense of removing a vehicle from Employer’s property without permission and/or a
reasonable purpose. (Referee Finding of Fact (F.F.) Nos. 1, 17.) Claimant applied for
UC benefits and, on April 12, 2018, the local service center found Claimant ineligible.
(Certified Record (C.R.) at Item No. 5.) Claimant appealed and a referee conducted a
hearing on May 16, 2018, at which Claimant and a witness for Employer appeared and
testified. After the hearing, the referee made the following findings of fact:

             1. [Claimant] was last employed as a full-time sales
                 consultant with [Employer] on March 1, 2018.

             2. Under [Employer]’s policy/procedures for driving a
                vehicle, all employees are required to accompany a
                customer on a test drive.

             3. For insurance purposes, a copy of the driver’s current
                license is required and must be left at the dealership prior
                to the test drive.

             4. The employee must use a vehicle key that is located in a
                locked cabinet.

             5. The employee uses a special code to access the locked
                cabinet.

             6. The employee must also put a license plate on the vehicle
                before removing it from the property.

             7. Employees are to provide the dealership with the
                customer’s name, customer’s driving license, the vehicle
                they are [sic] interested in and the vehicle that is being
                test driven prior to removing the vehicle.

             8. Employees are not allowed to use a vehicle for their own
                personal use without express authorization from their
                immediate supervisor.




                                           2
            9. As a sales consultant, [Claimant] was responsible to
               ensure these policies and procedures were followed, and
               [Claimant] was aware of these policies and procedures.

            10. In January of 2017, [Claimant] received a written
                warning for taking a vehicle off the property without
                permission or a reasonable purpose. He also failed to use
                a license plate and was driving the vehicle in a reckless
                manner.

            11. [Claimant] was informed that the vehicles are to be
                operated in complete compliance with state, local,
                federal and dealer laws and policies.

            12. If the policies and laws are not followed, the insurance
                company will not protect the dealership in the event of a
                mishap.

            13. [Claimant] was made aware of this.

            14. On February 22, 2018, [Claimant] took a high
                performance vehicle from the dealership without
                permission or a reasonable purpose to do so.

            15. [Claimant] used the vehicle to pick up sandwiches from
                a sandwich shop in downtown Hazleton.

            16. Claimant did not use the keys from the locked cabinet
                and did not have a license plate on the vehicle.

            17. Once the director was made aware of this and conducted
                an investigation, [Claimant] was discharged on March 1,
                2018 for [the] repeated offense of removing a vehicle
                from the property without permission and/or reasonable
                purpose.

(Referee F.F. Nos. 1-17.) The referee noted that Claimant contended “he took the
vehicle on a test drive with a customer.” (Referee decision at 2.) The referee also
recognized that Claimant admitted that Employer “has a very strict process before


                                         3
taking the vehicle for a test drive, which includes taking the customer’s driver’s license,
accessing the keys and plate from the locked cabinet, which uses a code, documenting
the type of vehicle the customer is looking for, and putting plates on the vehicle.” Id.
The referee explained that Employer had no documentation of any such customer or
record that the keys and/or a license plate were removed from the locked cabinet. Id.
Additionally, the referee observed that Claimant acknowledged that “the customer did
not have a valid driver’s license when she came to the dealership and she could not
operate a stick shift, which is the type of vehicle” that was taken for a test drive. Id.
Thus, the referee did not find Claimant’s assertions credible. Id. at 3. The referee
concluded that Claimant violated Employer’s rules and policies and that his actions
showed a disregard for the standards of behavior an employer has a right to expect of
its employees, as well as a disregard of Employer’s interest. Id. Consequently, the
referee determined that Claimant was ineligible for benefits under section 402(e) of the
Law. Id.
             Thereafter, Claimant appealed to the Board arguing that the referee erred
and requested a remand hearing in order to present the testimony of an additional
witness. The Board concluded that the referee’s decision was proper under the Law.
(Board order at 1.) The Board adopted and incorporated the referee’s findings and
conclusions and made the following additional findings of fact:
             15a. [Claimant] used the vehicle to drive a customer to her
                  home. The customer had no interest in purchasing a
                  vehicle and she was unable to drive the vehicle because
                  she did not have a driver’s license and she could not
                  operate a manual transmission.

             17a. As part of the investigation, [Employer] reviewed its
                  records. There was no record that [Claimant] used his
                  code to get the keys to the vehicle out of the lock box.
                  There was no record that [Claimant] signed out a license
                  plate.    There was no record of the customer’s
                  identification card.

                                            4
              17b. [Employer] reviewed a video tape of [Claimant] taking
                   the motor vehicle. The video tape shows [Claimant] did
                   not place a license plate on the vehicle prior to driving
                   it off the lot.

(Board F.F. Nos. 15a, 17a-17b.) The Board also noted that Claimant requested a
remand hearing to explain his position and to present the testimony of an additional
witness. (Board order at 1.) The Board denied Claimant’s request for a remand hearing
because Claimant had not alleged sufficient grounds for the case to be re-opened for
the purpose of taking additional evidence. Id. Therefore, the Board ruled Claimant
ineligible for UC benefits. Id. at 2.
              Claimant now petitions this Court for review of the Board’s order,2
essentially arguing that the three additional factual findings made by the Board are not
supported by substantial evidence.


                                           Discussion
              Initially, we note that section 402(e) of the Law provides that an employee
shall be ineligible for UC benefits for any week in which his unemployment is due to
willful misconduct connected to his work. 43 P.S. §802(e). Willful misconduct is
defined as (1) wanton and willful disregard of an employer’s interests; (2) deliberate
violation of an employer’s rules; (3) disregard of the standards of behavior that an
employer can rightfully expect from an employee; or (4) negligence showing an
intentional disregard of the employer’s interest or the employee’s duties and
obligations. Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422,


       2
          Our review of the Board’s order “is limited to determining whether the necessary findings
of fact were supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).


                                                5
425 (Pa. 2003). Whether a claimant’s conduct constitutes willful misconduct is a
question of law fully reviewable by this Court on appeal. Temple University of the
Commonwealth System of Higher Education v. Unemployment Compensation Board
of Review, 772 A.2d 416, 418 n.1 (Pa. 2001). If an employer alleges misconduct
because of a claimant’s violation of a work rule, the employer must prove the existence
of the rule and its violation, and the burden then shifts to the claimant to show good
cause for his actions. McKeesport Hospital v. Unemployment Compensation Board of
Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993).
             Claimant argues that Employer’s reasons for his discharge are false. He
contends that Employer did not provide any proof of its accusations against him.
Specifically, Claimant asserts that Employer never showed the referee the video of
Claimant leaving the parking lot with the vehicle. Claimant also maintains that he
wanted to present additional evidence at the hearing but the referee “implied it was not
necessary.” (Claimant’s brief at 9.)
             Claimant further argues that he gave his manager the customer’s license
and that he gave paperwork to Employer’s Finance Manager demonstrating that he sold
the vehicle to the customer. Claimant contends that he not only sold the vehicle to the
customer, but that he also took her on a test drive with the license plate on the rear
windshield of the vehicle where it was required to be placed. Claimant also attached
paperwork to his brief with the alleged customer’s name circled. Because he contends
Employer’s accusations against him are false, Claimant requests that we reverse the
order of the Board.
             In UC cases, the Board’s findings of fact must be supported by
“[s]ubstantial evidence [which] is defined as ‘such relevant evidence which a
reasonable mind would accept as adequate to support a conclusion.’” Western &
Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913
A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation


                                           6
Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). “The Board’s findings are
conclusive on appeal so long as the record, when viewed in its entirety, contains
substantial evidence to support the findings.” Western & Southern Life Insurance Co.,
913 A.2d at 335. This Court is bound “to examine the testimony in the light most
favorable to the party in whose favor the Board has found, giving that party the benefit
of all inferences that can logically and reasonably be drawn from the testimony” to
determine if substantial evidence exists for the Board’s findings.       United States
Banknote Co. v. Unemployment Compensation Board of Review, 575 A.2d 673, 674
(Pa. Cmwlth. 1990).
             Moreover, in UC cases, “it is well-settled that the Board is the ultimate
fact finder and is, therefore, entitled to make its own determinations as to witness
credibility and evidentiary weight.” Serrano v. Unemployment Compensation Board
of Review, 149 A.3d 435, 439 (Pa. Cmwlth. 2016). “The Board is also empowered to
resolve conflicts in the evidence.” Id. ‘“Questions of credibility and the resolution of
evidentiary conflicts are within the sound discretion of the Board, and are not subject
to re-evaluation on judicial review.”’         Id. (quoting Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. Cmwlth. 1985)).
             Here, Claimant’s argument is nothing more than an attempt to have this
Court accept his version of the facts, instead of those found by the Board. After a
careful review of the record, we conclude that there is substantial evidence to support
the Board’s determination that Claimant engaged in willful misconduct by not
following Employer’s procedures and policies when removing one of Employer’s
vehicles from its property.
             Claimant acknowledged that Employer has “a very strict process” for
taking out Employer’s vehicles for customer test drives. (C.R. at Item No. 9, Notes of
Testimony (N.T.) at 12.) In particular, Claimant stated that employees must obtain the
customer’s driver’s license and give it to the manager, who scans it into the system.


                                           7
Id.3 Claimant testified that in order to go on a test drive employees also need to obtain
a license plate and are not allowed to drive on the road without a license plate. Id.
Further, employees must obtain the vehicles’ keys. (N.T. at 13.) Both the keys and
license plates are obtained from the “key machine,” into which employees must enter
a special code to take out the items. (N.T. at 13, 16.) He admitted that the process for
taking out a vehicle was “implemented [sic] into [his] head.” (N.T. at 15.)
               Employer’s Director, Adam Walsh, testified and presented documents
showing that Claimant read the employee handbook and agreed to follow the guidelines
in the handbook. (N.T. at 2.) Walsh explained that sales consultants must receive
permission from a manager before removing vehicles from Employer’s property. (N.T.
at 5.) He noted that before a test drive occurs, sales consultants must also make a
photocopy of the customer’s driver’s license, which is kept on record, and that sales
consultants may not go on test drives unless they obtain the customer’s driver’s license
information. (N.T. at 5, 21.) Walsh stated that the driver’s license and license plate
requirements exist for insurance reasons. (N.T. at 10.)
               Walsh testified that on February 22, 2018, there was no record of Claimant
taking out two vehicles with a customer or signing the vehicles’ keys out. (N.T. at 3-
4, 9.) However, when Walsh pulled up the high definition surveillance video camera,
he observed Claimant taking the customer out in two vehicles that “he had no reason
to take.” (N.T. at 4.) Walsh stated that Claimant admitted to him that the customer
was uninterested in and had no intent to purchase the vehicles that were driven. (N.T.
at 4, 22.) Walsh explained that managers do not authorize test drives where customers
have no interest in a vehicle. (N.T. at 22.) He also said that Claimant did not use a
license plate when taking out the vehicles. (N.T. at 4.) Specifically, Walsh stated that



       3
          The employee handbook also states that “[f]or insurance purposes, a copy of the driver’s
current license is required and must be left at the dealership prior to the test drive.” (C.R. at Item No.
4.)

                                                    8
the video cameras, which are very high quality, did not show Claimant attach a license
plate to the vehicles before removing them from Employer’s property. (N.T. at 7.)
             Walsh noted that the vehicles taken out by Claimant were “high
performance vehicle[s]” that may not be taken out unless permission is given by a
manager. (N.T. at 6.) Yet, Walsh testified that there is no record that the keys to these
vehicles were removed from the key machine. Id. He explained that the keys are kept
locked and secured in the key machine and that when keys are removed from the key
machine it takes a picture and thumbprint record of the employee, but in this instance
there was no record of Claimant removing the keys from the key machine. Id. Walsh
also introduced a log from the key machine that showed there was no record of
Claimant taking out the two vehicles in question on February 22, 2018. (N.T. at 10-
11.) Walsh testified that a second set of keys is kept in the “vehicle pack” in the
“salesperson’s area,” but removal of keys from the vehicle pack is cause for “instant
termination.” (N.T. at 6.) Walsh noted that Claimant had previously been warned for
a similar type of incident. (N.T. at 9.)
             Claimant admitted that the customer did not have an “actual” driver’s
license. (N.T. at 12.) Claimant stated that the vehicles that were taken out were manual
transmission and that he drove the vehicles because the customer did not know how to
drive a manual transmission. (N.T. at 18-19.) He also asserted that although he initially
drove the vehicles, the customer subsequently did as well. (N.T. at 19.) Claimant
conceded that he had driven the customer home in one of the vehicles and that he had
used the vehicle to pick up food at a sandwich shop after dropping off the customer.
(N.T. at 24.) Claimant testified that salespeople are permitted to take out vehicles at
any time and for any reason, as long as they receive permission from a manager and
that, here, both of his managers were aware he took the vehicles. (N.T. at 12, 16.)
Conversely, Walsh stated that the customer was not interested in the vehicles on the
day in question, he only observed Claimant driving the vehicles, and that managers are


                                           9
not authorized to allow salespeople to drive vehicles for any reason, such as to drive
customers home. (N.T. at 4, 19, 21.)
               Walsh explained that Claimant was discharged due to his willingness to
expose Employer to liability on multiple occasions. (N.T. at 8.) He stated that the final
incident that resulted in Claimant’s termination was when he took “two different
vehicles out, without license plates, without getting the customer’s driver’s license”
and without signing out the keys in the proper manner. Id. Claimant admitted he was
told that he was fired for not having the customer’s driver’s license in the system, for
taking a vehicle out without permission, and for not having a license plate on the
vehicle. (N.T. at 15.)
               When examining the foregoing testimony in the light most favorable to
Employer, as we must because the Board found in its favor, there is undoubtedly
substantial evidence to support the Board’s findings. First, there is substantial evidence
in the record to support the findings that Claimant did not obtain keys from the locked
cabinet using a special code, obtain a copy of the customer’s driver’s license
information, or affix a license plate to the vehicles, as was required to test drive
vehicles. (Board F.F. Nos. 17a-17b; Referee F.F. Nos. 5-8.) In particular, both
Claimant and Employer’s witness testified regarding Employer’s policies and
procedures for driving Employer’s vehicles, and Employer’s witness stated there was
no record of Claimant obtaining the keys from the locked cabinet or the customer’s
driver’s license information for the two vehicles that were driven on February 22, 2018.
Employer’s witness also testified that he did not observe Claimant placing a license
plate on the vehicles on the surveillance video.4


       4
        Claimant impugns the Board and referee for relying on Employer’s testimony regarding the
videotape that showed Claimant taking out Employer’s vehicles, where the actual videotape was not
admitted into evidence. However, in a UC referee hearing, a witness is competent to testify as to
what he observed on a videotape without submitting it into evidence, as the conduct on a video is not


                                                 10
               Second, there is substantial evidence in the record that the customer was
uninterested in purchasing Employer’s vehicles, that Claimant used one of the vehicles
to pick up food from a sandwich shop, and that Claimant’s use of the vehicles was not
authorized. (Board F.F. No. 15a; Referee F.F. No. 15.) Specifically, Claimant testified
that the customer could not drive a manual transmission vehicle, which supports the
finding that she was not interested in the vehicle, and he admitted that he used one of
the vehicles to drive the customer home and to go to a sandwich shop. Employer’s
witness noted that managers cannot authorize the use of Employer’s vehicles for such
purposes and that Claimant told him that the customer was uninterested in the vehicles.
Based on this testimony and the fact that Claimant did not follow the established
procedures for driving a vehicle, there is also substantial evidence of record to support
the finding that Claimant removed a vehicle from the property without permission
and/or a reasonable purpose.
               Claimant argues that all of the accusations against him are false. He
implies that he had permission to drive Employer’s vehicles and contends that he both
obtained the customer’s paperwork and attached the license plate to the vehicles, as
required by Employer’s policies. He also maintains that he sold a vehicle to the
customer the same day of the test drive.5 However, the referee, and by incorporation
the Board, concluded that Claimant’s assertions regarding the use of the vehicle were


hearsay because it is non-assertive. See Yost v. Unemployment Compensation Board of Review, 42
A.3d 1158, 1164 & n.6 (Pa. Cmwlth. 2012); see also Rich v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 776 C.D. 2013, filed January 15, 2014), slip op. at 6-7 (same). Pursuant
to this Court’s Internal Operating Procedures, an unreported opinion of the Court filed after January
15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).

       5
          Claimant has attached documents to his brief that supposedly demonstrate that he sold a
vehicle to the customer. However, it is axiomatic that this Court may not consider documents attached
to a brief that are not part of the certified record. Henderson v. Unemployment Compensation Board
of Review, 77 A.3d 699, 713 n.6 (Pa. Cmwlth. 2013); Croft v. Unemployment Compensation Board
of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995).


                                                 11
not credible. (Board decision at 1; Referee decision at 2-3.) As the arbiter of
credibility, the Board was free to accept or reject the testimony of the witnesses in
whole or in part and, on appeal, we may not disturb such determinations. Because
Claimant did not follow Employer’s established policies and procedures for removing
vehicles from Employer’s property and also did not have permission and/or a
reasonable purpose to use the vehicles, we conclude that the Board correctly
determined that Claimant committed willful misconduct by violating Employer’s rules
and policies, disregarding Employer’s interests, and disregarding the standards of
behavior an employer has a right to expect from its employees.6


                                           Conclusion
               Because there is substantial evidence in the record to support the Board’s
determination that Claimant engaged in willful misconduct, the Board’s order denying
Claimant UC benefits is affirmed.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       6
         Claimant also argues that he could not present additional evidence at the hearing because the
referee “implied it was not necessary.” (Claimant’s brief at 9.) Yet, the record reveals that at the
hearing, Claimant testified on his own behalf, was given the opportunity to cross-examine Employer’s
witness, was not prohibited from offering any available evidence, and was permitted to render a
closing statement. Where the record reveals that the claimant was “provided ample opportunity to
present his case through direct and rebuttal testimony as well as cross-examination,” any claim that
he was denied a fair hearing cannot be sustained. Hall v. Unemployment Compensation Board of
Review, 584 A.2d 1097, 1101 (Pa. Cmwlth. 1990).

                                                 12
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Scott Caceres,                    :
                  Petitioner           :
                                       :    No. 1307 C.D. 2018
            v.                         :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                 Respondent            :


                                    ORDER


            AND NOW, this 5th day of April, 2019, the August 8, 2018 order of the
Unemployment Compensation Board of Review is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
