           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shiloh Homecare Corporation                  :
d/b/a ComForCare                             : No. 1964 C.D. 2015
Senior Services-York County,                 : Submitted: February 26, 2016
                                             :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :
                                             :
                            Respondent       :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                 FILED: May 18, 2016

              Shiloh Homecare Corporation d/b/a ComForCare Senior Services –
York County (Employer) petitions for review of the September 25, 2015 order of
the Unemployment Compensation Board of Review (Board), affirming a referee’s
decision and holding that Tierra Washington (Claimant) was not ineligible for
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law).1 We affirm.


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e), which provides that an employee shall be ineligible for compensation for any week in
which her unemployment is due to her discharge or temporary suspension from work for willful
misconduct connected with her work.
            Claimant was employed by Employer as a full-time home health aide
from July 30, 2011 to April 10, 2015, earning $9.75 per hour. Employer’s policy
requires employees to call Employer fifteen minutes before the start of a shift to
report a tardiness. The policy provides that three occurrences of tardiness within
ninety days will result in an employee’s discharge.       Employees receive two
counselings, either verbal or written, prior to being discharged. Findings of Fact
Nos.1-4.
            On January 16, 2015, Claimant was counseled for tardiness and for
failing to use the client’s phone to clock-in to work. She was counseled for the
same reasons on February 23, 2015, and April 7, 2015. On April 10, 2015, she
received a final counseling after being tardy three times in one week, and she was
advised that one more instance of tardiness would result in her discharge. Findings
of Fact Nos. 5-8.
            Claimant’s car broke down in November 2014 and she could not
afford to purchase another one.         Claimant notified Employer about her
transportation problem. After November 2014, Claimant relied on her mother and
friends to take her to and from work, and they were not always reliable. Findings
of Fact Nos. 9-11.
            On April 13, 2015, Claimant’s transportation was late. She called
Employer two minutes before the start of her shift and advised Employer she
would be late due to her transportation issues. Claimant was late to work, and
Employer discharged her that day for excessive tardiness. Findings of Fact Nos.
12-14.




                                        2
               The local service center determined that Claimant was not ineligible
for unemployment benefits, and Employer appealed.             A referee conducted a
hearing at which Claimant and Jennifer Foley (Foley), Employer’s owner, testified.
               Foley described Employer’s policies and said that Claimant was
aware of them. Reproduced Record (R.R.) at 60a-61a. Foley stated that Employer
counseled Claimant on January 16, 2015, February 23, 2015, and April 7, 2015, for
tardiness and for failing to use the client’s phone to clock-in to work. Foley
testified that Employer gave Claimant a written warning on April 10, 2015,
informing her that she had three tardies within one week and that one more tardy
would result in her termination. Foley said that Claimant signed this document.
R.R. at 62a.
               Foley testified that on April 13, 2015, Claimant’s shift was to start at
9:00 a.m. Foley said that Claimant called sometime between 9:10 a.m. and 9:20
a.m. to report that she was late for work because her ride did not show up. Foley
stated that Employer sent a replacement for Claimant at 9:30 a.m. R.R. at 62a-63a.
Foley stated that this final incident was written up as “late for work” which
resulted in Claimant’s termination. Foley complained that Claimant was late 29
times after she was counseled on January 12, 2015. However, Foley testified that
if Claimant had not been late on April 13, 2015, she would not have been fired.
R.R. at 65a.
               Claimant testified that she began working for Employer, Mondays
through Thursdays for a 36-hour week. After eighteen months, Claimant’s client
became ill, and Claimant was assigned to work an additional eight hours on Friday.
R.R. at 59a. Claimant said that her client’s daughter met her every morning and
updated Claimant on her client’s condition. Claimant added that the daughter also


                                           3
worked, and Claimant often spoke with her before calling Employer to clock-in.2
R.R. at 68a-69a.
               Claimant stated that she lost her means of transportation in November
2014 when her car broke down, and that she could not afford to buy another car.
Claimant explained that she supported a family of three on her salary, which had
just reached $9.75 an hour in 2015. Claimant said that she depended on rides,
which were not always reliable, from family and friends to get to work and get her
children to two different places for daycare. Claimant stated that she explained her
transportation difficulties to Employer. R.R. at 68a-69a.
               Concerning the April 13, 2015 incident, Claimant testified that she
called Employer at 8:58 a.m., two minutes before the start of her shift, to advise
Employer that she would be late for work because her transportation was late
picking her up. R.R. at 70a-71a.
               In a June 12, 2015 decision, the referee issued the findings
summarized above and concluded that Claimant was not ineligible for benefits due
to willful misconduct. The referee recognized that Claimant was discharged for
excessive tardiness, but credited Claimant’s testimony that she lost her means of
transportation, could not afford a new car, and had to depend on others who were
not always reliable to provide her transportation to and from work. The referee
concluded that while Employer certainly had the right to discharge Claimant, the
facts did not establish a basis to deny benefits. Employer appealed to the Board
which affirmed the referee’s decision and adopted the referee’s findings and
conclusions.

      2
          Claimant worked for the same client Mondays through Thursdays from January 2015
until the client’s death in April 2015. R.R. at 66a.


                                           4
              On appeal to this Court,3 Employer argues that the Board erred in
concluding that Claimant’s habitual tardiness and her actions on April 13, 2015,
did not constitute willful misconduct. Employer asserts that the Board also erred
in determining that Claimant’s continued reliance on an unreliable mode of
transportation constituted good cause for her conduct.
              An employer bears the burden to demonstrate that a claimant is
ineligible for unemployment compensation benefits due to willful misconduct.
Holomshek v. Unemployment Compensation Board of Review, 395 A.2d 708, 709
(Pa. Cmwlth. 1979). The Law does not define “willful misconduct,” but our courts
have defined it as including: an act of wanton or willful disregard of the
employer’s interest; a deliberate violation of the employer’s rules; a disregard of
standards of behavior which the employer has a right to expect from an employee;
and negligence indicating an intentional disregard of the employer’s interest, or of
the employee’s duties and obligations to the employer. Altemus v. Unemployment
Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1995). Where
the allegation of willful misconduct is based on a violation of the employer’s work
rule, the employer must show the existence of a reasonable work rule and the
claimant’s violation of the rule. Williams v. Unemployment Compensation Board
of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007). Once the employer meets its
burden, the burden shifts to the claimant to establish good cause for her conduct.
Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 719
(Pa. Cmwlth. 2013).

       3
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Schneider v. Unemployment Compensation Board of Review, 12 A.3d 754,
756 n.1 (Pa. Cmwlth. 2010).


                                              5
              Here, Employer established that Claimant was discharged for
excessive instances of tardiness in violation of Employer’s policy. The burden
then shifted to Claimant to establish good cause for her conduct.
              Employer characterizes the reason for Claimant’s tardiness as her
failure to secure reliable transportation. Citing Spicer v. Commonwealth, 407 A.2d
929, 931 n.2 (Pa. Cmwlth. 1979), Employer argues that Claimant’s continued
reliance on transportation that she knew was not reliable constituted willful
misconduct.
              In Spicer, we observed that a claimant who was late because of a
series of transportation problems beyond his control would not be ineligible for
benefits due to willful misconduct. There, the claimant, who had a history of
tardiness and absenteeism, did not own a car and relied on fellow employees for
rides to work, which were not always available. The Board held that he was
discharged for tardiness and ineligible for benefits under Section 402(e), but the
Board did not address the claimant’s reasons for his lateness. We vacated the
Board’s holding and remanded for the Board to determine whether the claimant’s
explanation was credible and established good cause. Id. at 931. Thus, the holding
in Spicer does not support Employer’s argument and Employer’s reliance on
Spicer is misplaced.
              Claimant contends that her financial situation is similar to that of the
claimant in Bell Socialization Services, Inc. v. Unemployment Compensation
Board of Review, 74 A.3d 1146 (Pa. Cmwlth. 2013). In Bell, we affirmed the
Board’s finding that the claimant established good cause for violating the
employer’s work rule that required employees to have reliable transportation.
Working as a full-time residential service provider, earning $9.00 per hour, the


                                          6
claimant possessed a car which eventually failed mechanically. Although she
made subsequent arrangements to borrow her mother’s car, this car was lost to an
accident. We held that, because her vehicle complications were unforeseen and
she did not have sufficient income to repair her car or purchase a new one, the
claimant established good cause for violating the employer’s work rule and was
not ineligible for unemployment benefits. Id. at 1148-49.
              Employer argues that Bell does not apply because Claimant did not
establish that it was impossible to secure reliable transportation. (Employer’s brief
at 3). However, Employer does not challenge the Board’s finding that Claimant
could not afford to buy another car. Additionally, Claimant testified that her
children are taken to different daycares before Claimant reports for work at a
client’s home. We conclude that while Employer was justified in discharging
Claimant based on her tardiness, the record does not support a denial of benefits.4
              Accordingly, we affirm the Board’s order.




                                          MICHAEL H. WOJCIK, Judge




       4
         See Adept Corporation v. Unemployment Compensation Board of Review, 437 A.2d
109, 111 (Pa. Cmwlth. 1981) (although the employer was justified in discharging the claimant,
the claimant established good cause for his absence because of car problems requiring
mechanical attention).


                                             7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shiloh Homecare Corporation            :
d/b/a ComForCare                       : No. 1964 C.D. 2015
Senior Services-York County,           :
                                       :
                       Petitioner      :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                                       :
                       Respondent      :


                                    ORDER


             AND NOW, this 18th day of May, 2016, the order of the
Unemployment Compensation Board of Review, dated September 25, 2015, is
affirmed.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
