          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lori J. Shoemaker,                       :
                     Petitioner          :
                                         :
             v.                          :   No. 1717 C.D. 2014
                                         :   Submitted: June 26, 2015
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE LEAVITT                                            FILED: October 19, 2015

             Lori Shoemaker (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) denying her claim for
unemployment compensation benefits.           In doing so, the Board affirmed the
decision of the Referee that Claimant was ineligible for benefits under Section
402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e),1 by
reason of her willful misconduct. For the reasons that follow, we affirm.
             Claimant was employed as a transit driver for Easton Coach Company
(Employer) from January 25, 2004, until she was discharged on April 11, 2014.

1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e),
which states that a claimant is ineligible for unemployment compensation whenever his
“unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work ….”
Claimant’s duties required her to transport elderly and handicapped individuals in a
small bus. Claimant was discharged for violating Employer’s policy requiring
drivers to drive safely. Claimant applied for unemployment benefits, which were
denied by the Scranton Unemployment Compensation Service Center. Claimant
appealed.
             At the Referee’s hearing, Employer presented the testimony of its
Operations Manager, Tracey Deater, and a video recording of an incident that
occurred on April 8, 2014, while Claimant was on her regular route. Deater
testified as follows:

             [Employer]: And can you explain in detail about the incident
             that occurred on, it was April 8th, on Route 78.
             [Deater]: [Claimant] was driving on the shoulder of the
             highway clocked at 71 miles per hour.
             [Employer]: And how were you made aware of this incident?
             [Deater]: The drive cam went off.
             [Employer]: And can you explain what the drive cam is?
             [Deater]: A drive cam is installed in all our vehicles, it’s set off
             by a G-force -- sudden braking, an accident -- and it shows 10
             seconds prior to and 10 seconds after the incident.
             [Employer]: And what did you do when you were made [aware]
             of this drive cam incident with [Claimant]?
             [Deater]: We brought [Claimant] into the office and we sat her
             down, we reviewed the drive cam with her. And she stated that
             this is something that she did on a regular basis was ride the
             shoulder because she was getting off on the next exit and did
             not seem too concerned over it since it was a habit that she had
             seemed to have picked up.




                                          2
Notes of Testimony, June 12, 2014, at 8 (N.T. ___); Reproduced Record at 20a
(R.R.__). Deater testified further regarding Claimant’s reaction to viewing the
video:

            She saw the drive cam and the first word she said was oops.
            And then she didn’t see the dangerous stuff, the other cars in
            front of her were doing the same thing, and it was something
            that she did prior to; it wasn’t something new to her.

N.T. 11; R.R. 23a.
            Claimant appeared pro se and testified on her own behalf.              She
offered the following explanation for driving her bus on the shoulder on April 8,
2014:

            Well the video shows what happened but the reason it happened
            was because the car in front of me braked when I was getting
            off into the lane to get off the exit. The car in front of me
            braked so I braked and I went over to the side because I knew
            there was plenty of room over there and if -- you can’t see
            behind me on those videos but the lane getting off when you
            come down over the hill the third lane that all the trucks use
            those guys when you’re coming down over that hill they’re
            moving because they’re picking up speed now from being
            going up the hill slow, they get to the top, and they start picking
            up speed. When you come around the corner there when you
            come off the exit there’s not a separate exit until maybe 50 feet
            is the exit but the cars are backed up on that shoulder of the
            road on that right hand lane and these cars behind me and trucks
            behind me are barreling down. I’d rather be on the side of the
            road in case one of those trucks don’t see the brake lights that
            I’m not going to be involved in an accident. That’s why I did
            it. I didn’t do it because I couldn’t handle the bus, I did it for a
            specific reason; I didn’t want to get rear ended by a bunch of
            tractor trailers heading down the hill going 60 miles an hour.

N.T. 14; R.R. 26a.



                                         3
              The Referee found, inter alia, that Employer “has a policy prohibiting
the unsafe operation of all company vehicles” and Claimant “admitted to the
actions observed on the video indicating it was her regular way of travel.”
Referee’s Decision/Order at 1, Findings of Fact No. 2 and 6. Accordingly, the
Referee held that Claimant committed disqualifying willful misconduct. Claimant
appealed to the Board, which adopted the Referee’s findings and conclusions and
affirmed the denial of benefits under Section 402(e) of the Law. The Board
specifically discredited Claimant’s proffered justification for her conduct, i.e., “that
she was riding on a non-authorized lane of traffic in order to avoid an accident.”
Board Adjudication at 1. Claimant petitions for this Court’s review.
              On appeal,2 Claimant argues that the Board erred in concluding that
she lacked good cause for violating Employer’s policy. Alternatively, Claimant
asserts that she was denied a fair hearing because she was not represented by
counsel and the Referee was biased against her.
              Willful misconduct has been defined by the Pennsylvania courts as,
inter alia, “a violation of work rules or a disregard of standards of behavior an
employer has the right to expect of employees.” ATM Corporation of America v.
Unemployment Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth.
2006). If a claimant is discharged for violating a work rule, the employer bears the
initial burden of showing “the existence of a work rule and that the claimant
violated the rule.” Id. “Once the employer establishes those elements, the burden
then shifts to the claimant to show that she had good cause to violate the rule.” Id.

2
  This Court’s review is limited to determining whether the factual findings are supported by
substantial evidence, constitutional rights were violated, or an error of law was committed.
Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024, 1026 n.3 (Pa. Cmwlth.
2009).


                                             4
             Here, Employer’s demonstrative and testimonial evidence established
that Claimant violated Employer’s safe driving policy, of which she was aware.
Thus, the burden shifted to Claimant to show that she had good cause for violating
the policy when she speeded down the shoulder of Route 78. Claimant contends
that her conduct was reasonable because she feared being rear-ended by a tractor
trailer.   Claimant likens the circumstances of her discharge to those of the
claimant’s in McLean v. Unemployment Compensation Board of Review, 383 A.2d
533 (Pa. 1978).
             In McLean, a claimant refused to operate a truck that he believed was
unsafe because of a series of improper repairs made by the same garage. The
employer disagreed with the claimant’s opinion and ordered him to drive the truck.
When the claimant refused, the employer discharged him for willful misconduct.
The Board denied benefits under Section 402(e) of the Law, and this Court
affirmed. On appeal, our Supreme Court reversed, reasoning that:

             In light of the demonstrated inadequacy of [the previous] repair
             services, the employer’s demand that [the claimant] drive the
             truck was unreasonable to the extent that the employer insisted
             it be repaired only by [the same service shop]. The employer
             had no right to expect an employee to rely upon a repair service
             which had twice failed in making repairs essential to safe
             operation; hence, the employee did not disregard a reasonable
             employer’s request.

McLean, 383 A.2d at 536. Accordingly, in that instance, the claimant’s decision to
reject his employer’s orders did not amount to willful misconduct.
             McLean is not analogous to the matter sub judice. In McLean, there
was no dispute regarding the facts; the employer acknowledged that the truck had
been improperly repaired twice by the same garage. Here, Claimant and Employer
presented conflicting evidence about why Claimant drove on the highway
                                         5
shoulder. Claimant testified that she was trying to avoid being rear-ended by a
tractor trailer. Deater testified that Claimant admitted after the incident that she
habitually drove on the shoulder in this location. The Board adopted Employer’s
version of the facts and found Claimant not credible.
             Essentially, Claimant asks this Court to reweigh the evidence and
render new credibility determinations. However, “the Board is the ultimate finder
of fact, and questions of credibility and evidentiary weight to be given to
conflicting testimony which was found to be credible are matters for the Board as
factfinder and not for a reviewing court.”              Stringent v. Unemployment
Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). Thus,
because Claimant offered no credible evidence that she had good cause for her
conduct, the Board did not err in denying her benefits under Section 402(e) of the
Law.
             Claimant argues in the alternative that she was denied a fair hearing
because she “was unrepresented during the Referee’s hearing and really was not
given a full adequate opportunity to explain her situation. The Referee controlled
the hearing and was asking leading questions which were sited [sic] to
[E]mployer.” Claimant’s Brief at 11-12. Claimant concludes that if she “had
counsel, most likely there would have probably been a different result.” Id. at 12.
             Claimant’s argument lacks merit. Claimant was informed of her right
to proceed with counsel in the notice of hearing she received in the mail. Then, at
the start of the hearing, the Referee advised both parties that they had the right to
be represented by counsel. Claimant stated that she understood and chose to
proceed pro se. Accordingly, the issue is waived. Moonlight Mushrooms, Inc. v.
Unemployment Compensation Board of Review, 596 A.2d 1264, 1268 (Pa.


                                         6
Cmwlth. 1991). In any case, because Claimant did not raise this issue in her
appeal to the Board, it is waived. Schneider v. Unemployment Compensation
Board of Review, 523 A.2d 1202, 1204 (Pa. Cmwlth. 1987).
           For all of the foregoing reasons, the order of the Board is affirmed.

                                            ______________________________
                                            MARY HANNAH LEAVITT, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lori J. Shoemaker,                 :
                     Petitioner    :
                                   :
            v.                     :   No. 1717 C.D. 2014
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :


                                  ORDER

            AND NOW, this 19th day of October, 2015, the order of the
Unemployment Compensation Board of Review dated August 26, 2014, in the
above-captioned matter is hereby AFFIRMED.

                                         ______________________________
                                         MARY HANNAH LEAVITT, Judge
