           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Easton,                            :
                     Petitioner            :
                                           :
              v.                           :    No. 1994 C.D. 2016
                                           :    Submitted: May 26, 2017
Unemployment Compensation                  :
Board of Review,                           :
                 Respondent                :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: September 8, 2017

              Anthony L. Easton (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board) that
Claimant was ineligible for benefits. The Board affirmed the decision of the
Referee that Claimant’s willful misconduct at work rendered him ineligible under
Section 402(e) of the Unemployment Compensation Law (Law).1 Finding no error
by the Board, we affirm.
              Claimant worked as an assistant brewer for Victory Brewing
Company (Employer) until his discharge on June 16, 2016, for tardiness. Claimant
filed a claim for unemployment compensation benefits, which the UC Service
Center granted. Employer appealed, asserting that Claimant “had been placed on
documented probation for repetitive tardiness[, and he] fully understood that if

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e), set
forth infra at 5.
poor attendance issues continued, [he] may be terminated.” Certified Record
(C.R.) Item No. 7, Employer Petition for Appeal, at 3. The matter was assigned to
the Referee for a hearing.
             A hearing notice was sent to the parties informing them that the
hearing was scheduled for August 16, 2016. Claimant did not appear at the
hearing. Employer presented the testimony of its packaging manager, director of
brewing, and human resources manager. Employer also placed the incident write-
up sheets and timecard reports into evidence.
             Based on Employer’s testimonial and documentary evidence, the
Referee found that Claimant was employed full-time by Employer from May 1,
2015, through June 15, 2016. Despite being aware of Employer’s attendance
policy, Claimant was habitually late for work. Employer warned Claimant, in
writing and orally, that further violations of the attendance policy could result in
termination of his employment.      Nevertheless, Claimant was tardy on several
occasions from March to May 2016.       On the day of the final incident, June 15,
2016, Claimant did not report for the start of his scheduled shift at 10:00 p.m.
When his supervisor called him at 10:30 p.m., Claimant stated that he had
overslept. Claimant reported for work two hours later, offering no explanation for
his delay, even though he lived 15 minutes away. On June 16, 2016, Employer
discharged Claimant for his ongoing attendance issues.
             The Referee concluded that Claimant’s habitual tardiness constituted
willful misconduct that disqualified him from receiving benefits under Section
402(e) of the Law. Claimant appealed to the Board, stating that he “do[es] not
agree with the referee’s determination for denying [his] claim or having to pay
back over payments [because he] never received the notice of hearing[.]” C.R.


                                         2
Item No. 12, Claimant Petition for Appeal, at 5. He further stated that whenever he
was late to work it was because either he or his children were ill.
             The Board remanded the matter to the Referee, who was designated as
the Board’s hearing officer to receive evidence on Claimant’s reason for his
nonappearance at the August 16, 2016, hearing. In its remand decision, the Board
allowed the parties to provide new testimony and evidence on the merits, with the
proviso that such evidence would not be considered if Claimant failed to establish
proper cause for his nonappearance at the previous hearing.
             The remand hearing was held on October 17, 2016.                Claimant
confirmed the address to which the notice of hearing was mailed was correct but
testified that he did not receive the notice “or maybe it got lost in the mail.” Notes
of Testimony, 10/17/2016, at 4 (N.T. __). He explained that “[he did not] always
collect the mail. [His] mother could have got [sic] it and put it somewhere and [he]
never received it unless [he] would have been there.” Id. Claimant acknowledged
that he received the UC Service Center’s notice of determination, Employer’s
appeal notice, the Referee’s decision, and the remand hearing notice, all of which
were mailed to Claimant at the same address as the initial hearing notice.
             Claimant also testified on the merits of the case. He could not recall
receiving a written warning in December 2015, but he did remember having a
discussion with his supervisor in March 2016 where he was informed that he had
used all his personal time for absences and that any further violation of Employer’s
attendance policy could result in termination. N.T. at 8. Claimant offered the
following explanation for his attendance issues:

             [Referee]: And what was the issue with your attendance?
             [Claimant]: I was sick one day and they put me on some type
             of probationary and then I got kids, they get sick too so when I
                                          3
              went the next day … or the next week or so after I came in late
              because one of my daughters was sick, and then that same night
              I was told I was fired.

N.T. at 5. Claimant denied that he was late for his shift on June 15, 2016; he
claimed that he had not been late for work since March of 2016. Id.
              By decision dated November 4, 2016, the Board held that Claimant
did not establish good cause for his nonappearance at the August 16, 2016,
hearing. The Board noted that “the hearing notice was mailed to [Claimant]’s
correct address and was not returned by the postal authorities as undeliverable.”
Board Order, 11/4/2016, at 1.           The Board expressly discredited Claimant’s
testimony that he did not receive the hearing notice and, thus, did not consider
Claimant’s testimony on the merits of the case. The Board adopted the findings
and conclusions of the Referee based upon the record from the original hearing and
affirmed the Referee’s decision. Claimant now petitions for this Court’s review.2
              On appeal,3 Claimant argues that the Board erred in finding that he
was ineligible for benefits under Section 402(e) of the Law because he “missed
days from work for [himself] being ill or one of [his] children. [He] tried to give
proper notice each and every time but with illnesses they can never be foreseen.”
Claimant Brief at 10. Claimant further argues that “[he] was consistent with [his]
attendance between March 2016 [and] June 2016[,]” and that he “performed [his]



2
  Our scope of review is to determine whether constitutional rights were violated, whether an
error of law was committed or whether necessary findings of fact are supported by substantial
competent evidence. Seton Company v. Unemployment Compensation Board of Review, 663
A.2d 296, 298 n.2 (Pa. Cmwlth. 1995).
3
  Claimant does not challenge the Board’s conclusion that he lacked proper cause for his
nonappearance at the August 16, 2016, hearing. Accordingly, we will not consider that issue.

                                             4
daily duties at [his] job to the best of [his] abilities and should not be penalized due
to [his] health.” Claimant Brief at 10-11.
             We begin with Section 402(e) of the Law, which states, in pertinent
part, as follows:

             An employe shall be ineligible for compensation for any week –
             (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). Whether the conduct for which an employee has been discharged
constitutes willful misconduct is a question of law subject to appellate review.
Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 438 (Pa.
Cmwlth. 2000). To disqualify a claimant from receiving benefits under the Law,
the employer bears the burden of proving willful misconduct. Once the employer
establishes a prima facie case of willful misconduct, the burden shifts to the
claimant to prove that his actions did not constitute willful misconduct under the
circumstances or that he had good cause for the behavior. Id. at 438-39. A
claimant has good cause if his actions are justified and reasonable under the
circumstances. Id. at 439.
             “There are four categories of activity that can constitute willful
misconduct: (1) the wanton or willful disregard of the employer’s interests; (2) the
deliberate violation of the employer’s rules; (3) the disregard of the standards of
behavior which an employer can rightfully expect from an employee; and (4)
negligence demonstrating an intentional disregard of the employer’s interests or
the employee’s duties and obligations to the employer.” Kelly, 747 A.2d at 439.



                                           5
             Habitual or excessive tardiness can constitute willful misconduct
which renders an employee ineligible for benefits under Section 402(e) of the Law.
American Process Lettering, Inc. v. Unemployment Compensation Board of
Review, 412 A.2d 1123, 1125 (Pa. Cmwlth. 1980). This Court has observed that
“constant tardiness would clearly fall within ‘wanton and willful disregard of the
employer’s interest,’ or ‘the disregard of standards of behavior which an employer
can rightfully expect from his employee,’” which are two of the four above-
referenced categories. Id. Further, “habitual tardiness, particularly after warnings
that a termination of services may result if the practice continues, is sufficient
evidence of an employee’s disregard of the employer’s interest to sustain a finding
of willful misconduct.”    Id. (quoting Unemployment Compensation Board of
Review v. Glenn, 350 A.2d 890, 892 (Pa. Cmwlth. 1976)).
             Here, the Referee found that Claimant was aware of Employer’s
attendance policy; had received verbal and written warnings concerning his
tardiness and attendance issues; and understood that he could be fired if he did not
correct those issues. Nevertheless, Claimant continued to be late in March 2016
and again in May 2016. The Referee found that on June 15, 2016, Claimant
overslept and was approximately two hours late to work; this final incident resulted
in his discharge.
             The fact that Claimant was warned to correct his habitual tardiness
and yet continued to be late thereafter shows the willfulness of his misconduct.
American Process Lettering, 412 A.2d at 1125. Because the Referee’s findings are
supported by the record, the Board did not err in adopting those findings and
holding that Claimant’s actions constituted willful misconduct under Section
402(e) of the Law.


                                         6
            Employer having established a prima facie case of willful misconduct,
the burden shifted to Claimant to show that he had good cause for his conduct.
Kelly, 747 A.2d at 438-39. Claimant alleges, as he did at the remand hearing, that
his tardiness was due to his illness or the illness of his children. There is no
evidence of record to support that claim, however, because Claimant did not
appear at the first Referee’s hearing. Where a party does not have proper cause for
missing a hearing, the hearing proceeds. The Board’s regulation states as follows:

            If a party notified of the date, hour and place of a hearing fails
            to attend a hearing without proper cause, the hearing may be
            held in his absence. In the absence of all parties, the decision
            may be based upon the pertinent available records. The
            tribunal may take such other action as may be deemed
            appropriate.

34 Pa. Code §101.51 (emphasis added).
            The Board held that Claimant did not have proper cause for failing to
attend the first hearing, which Claimant does not challenge in his appeal. Because
he was absent from the hearing, Claimant offered no evidence. Accordingly, the
Board did not err in adopting the Referee’s findings based upon the available
record and denying benefits under Section 402(e) of the Law, 43 P.S. §802(e).
            For all of the foregoing reasons, we affirm the Board’s decision.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
Judge Cosgrove dissents.




                                         7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Easton,                   :
                  Petitioner      :
                                  :
           v.                     :   No. 1994 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :

                                ORDER

           AND NOW, this 8th day of September, 2017, the order of the
Unemployment Compensation Board of Review dated November 4, 2016, in the
above-captioned matter is hereby AFFIRMED.

                               _____________________________________
                               MARY HANNAH LEAVITT, President Judge
