               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caitlin I. Horchuck,                           :
                              Petitioner       :
                                               :
                 v.                            :   No. 2004 C.D. 2016
                                               :   Submitted: September 1, 2017
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: October 23, 2017

                 Petitioner Caitlin I. Horchuck (Claimant), pro se, petitions for review
of an order of the Unemployment Compensation Board of Review (Board), which
reversed an Unemployment Compensation Referee’s (Referee) decision granting
benefits. The Board concluded that Claimant was ineligible for benefits pursuant to
Section 402(e) of the Unemployment Compensation Law (Law),1 relating to willful
misconduct. We affirm the Board’s order.
                 Claimant filed for unemployment compensation benefits after being
discharged from her employment as a medical office assistant for Abington
Memorial Hospital (Employer). The Lancaster UC Service Center (Service Center)
issued a determination finding Claimant eligible for unemployment compensation

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
benefits. Employer appealed. A Referee conducted an evidentiary hearing on July
13, 2016, but no one appeared to testify on behalf of Claimant or Employer.2
Pursuant to 34 Pa. Code § 101.51,3 the Referee conducted the hearing in their
absence and subsequently affirmed the Service Center’s determination.4 Employer
appealed to the Board, and the Board issued an order remanding the case to a Referee
in order to receive testimony on the issues of (1) Employer’s nonappearance at the
last hearing, and (2) whether Claimant was discharged for willful misconduct. The
remand instructions further provided that if the Board found that Employer did not
have good cause for its nonappearance at the first hearing, then the additional
testimony and evidence on the merits may not be considered.
                At the hearing, Employer presented the testimony of its practice
manager, Sue Gibbons (Gibbons), and its director of talent acquisition, Amy Taylor
O’Brien (O’Brien). (Certified Record (C.R.), Item No. 16.) Claimant testified on
her own behalf. (Id.)

       2
          Employer requested a continuance two days prior to the hearing due to a scheduling
conflict that resulted in Employer’s representatives not being able to attend. (C.R., Item No. 7.)
The Referee denied the continuance, as Employer did not confirm that the person unable to attend
was the sole, first-hand witness to the events leading to Claimant’s discharge. (C.R., Item No. 9
at 1.) Further, the hearing transcript provides that Claimant called the hearing office at 10:41 a.m.,
four minutes prior to the scheduled start of the hearing, stating that she was going to be fifteen
minutes late. (Id.) The Referee delayed the start of the hearing in an attempt to wait for Claimant,
but the Referee started the hearing at 11:16 a.m. in order to stay on schedule with other hearings.
(Id.)
       3
           34 Pa. Code § 101.51 provides:
              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.
       4
        As neither party attended the hearing to provide testimony, the substance of the hearing
involved the Referee identifying the documents made available to him and entering them into the
record.

                                                  2
             Regarding Employer’s nonappearance at the first hearing, O’Brien
testified that there was a change in staffing with Employer, which resulted in
Employer having no one available to testify at the hearing. (Id. at 4.) Employer
requested a continuance, which the Referee denied. (Id.) O’Brien further testified
that Employer thought it had adequately conveyed that it was unable to make the
hearing and was uncertain as to what other option Employer had other than not
showing up at the first hearing. (Id.)
             Regarding Claimant’s willful misconduct, O’Brien testified to
Employer’s expectations of employees in Claimant’s position. (Id. at 6.) One of
these expectations is that all medical office assistants for Employer must pass an
exam in order to become a certified medical office assistant within one year of being
hired. (Id.) O’Brien testified that if Claimant failed the test, she would have another
opportunity to pass, as long as she passed before the one-year deadline expired.
(Id. at 8.) Employer hired Claimant on June 1, 2015, and her deadline to pass the
certification exam was June 1, 2016. (Id. at 6.) Employer introduced evidence of
Claimant’s acknowledgement of this certification requirement and accompanying
deadline. (Id. at Bd. Ex. 8.) O’Brien further testified that Claimant did not pass the
exam, and Employer terminated Claimant’s employment on June 1, 2016. (Id.)
Gibbons, Claimant’s direct supervisor, testified that Claimant took and failed her
certification exam on May 26, 2016. (Id. at 11.) Further, Gibbons testified that she
had reminded Claimant of her deadline multiple times over the preceding year.
(Id. at 11-12.)
             Claimant, on her own behalf, testified that she attempted the
certification exam in May of 2016, but she did not pass. (Id. at 13.) Claimant further
testified that she would have taken the test earlier, but the testing center forced her


                                          3
to reschedule multiple times due to scheduling and technological issues. (Id.)
Claimant, however, did not provide any documentation from the testing center to
that effect.
               Following the hearing, the Board issued a decision, reversing the
Referee’s decision and finding Claimant ineligible for benefits. (C.R., Item No. 17.)
Accordingly, the Board considered all of the evidence presented in assessing the
merits of the case. (Id.) The Board issued its own findings of fact and conclusions
of law. The Board made the following relevant findings:
               1.     The claimant was last employed as a medical office
               assistant by the Abington Hospital from June 1, 2015, at a
               final rate of $15.90 per hour, and her last day of work was
               June 1, 2016.
               2.     The claimant was told previous to being hired that
               if she accepted the position she would have one year in
               which to become certified as a certified medical assistant.
               3.     The claimant was also told on June 9, 2015, that she
               had one year in which to receive her card showing that she
               was a certified medical assistant.
               4.     The claimant was further informed that just taking
               the test was not sufficient, she had to actually have the card
               proving that she had just passed the test.
               5.     The claimant was additionally made aware that if
               she did not pass the test the first time it could take up to
               three more months to pass the test.
               6.     The employer would accept the test results from two
               difference [sic] certifying organizations.
               7.     In December of 2015, the employer reminded the
               claimant that she needed to take the test.
               8.     The claimant was having personal problems.
               9.     The claimant alleged that the testing agency kept
               rescheduling the test but the claimant did not provide the
               documentation to her supervisor to show that the test was
               being rescheduled.

                                             4
            10. The claimant did not take the test until
            May 26, 2016.
            11. The claimant did not pass the test.
            12. The claimant was discharged because she did not
            pass the test.
            13. As of the time of the second hearing, the claimant
            had not passed the test.
            14. Due to a change in staffing, the employer had no
            one available to attend the first hearing.
            15. As a result, the employer requested a continuance.
            16. The continuance was denied.
(Id.)
            The Board concluded that Employer had good cause for its
nonappearance at the first hearing, as Employer had no one available to attend the
hearing, and concluded that Employer discharged Claimant for willful misconduct.
With regard to the latter conclusion, the Board reasoned:
            Since the claimant was discharged, the employer has the
            burden of establishing that the discharge was for willful
            misconduct in connection with her work, in accordance
            with the provisions of Section 402(e) of the Law.
            The employer has met this burden. The claimant was
            aware of the employer’s policy that she had to take and
            pass the test in one year. The claimant did not have good
            cause for her failure to take the test in a timely manner. As
            a result, the claimant did not have time in which to retake
            the test. In the absence of good cause for her actions, the
            claimant’s failure to take the test in a timely manner rises
            to the level of willful misconduct.

(Id.) Claimant now petitions this Court for review.




                                         5
              On appeal,5 Claimant argues that the Board abused its discretion by
remanding for a second hearing and erred in concluding that Employer had good
cause for its failure to appear. Claimant also argues substantial evidence does not
exist to support the Board’s findings of fact numbers 4 and 5. Finally, Claimant
argues that the Board erred in concluding that Claimant’s actions constituted willful
misconduct because Claimant had good cause for violating the condition of
employment.
              First, we address Claimant’s argument that the Board abused its
discretion by remanding for a second hearing and then erred in concluding that
Employer had good cause for its failure to appear at the first hearing. Claimant avers
that Employer did not provide adequate reasoning for its nonappearance at the first
hearing, and, therefore, the Board’s remand constituted an abuse of discretion.
Section 504 of the Law6 provides the Board with discretion to remand for an
additional hearing and, absent an abuse of that discretion, this Court will not overturn
the Board’s decision. Fisher v. Unemployment Comp. Bd. of Review, 696 A.2d 895,


       5
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.
       6
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 824.
Section 504 of the Law provides, in pertinent part:
               The board shall have power, on its own motion, or on appeal, to remove,
       transfer, or review any claim pending before, or decided by, a referee, and in any
       such case and in cases where a further appeal is allowed by the board from the
       decision of a referee, may affirm, modify, or reverse the determination or revised
       determination, as the case may be, of the department or referee on the basis of the
       evidence previously submitted in the case, or direct the taking of additional
       evidence.
(Emphasis added.)

                                               6
897 (Pa. Cmwlth. 1997). Further, Section 101.104 of the Board’s regulations
provide that “the Board may direct the taking of additional evidence, if in the opinion
of the Board, the previously established record is not sufficiently complete and
adequate to enable the Board to render an appropriate decision.” 34 Pa. Code §
101.104(c). The Board has “broad discretion to decide what issues will be addressed
at the remand hearing.” Primecare Medical, Inc. v. Unemployment Comp. Bd. of
Review, 760 A.2d 483, 487 (Pa. Cmwlth. 2000).         Our Supreme Court has held
that “[i]f a party fails to appear at a scheduled hearing, that party must show good
cause for that failure before the Board will delay the final disposition of the case by
remanding for additional hearings. Were it otherwise, there would be no incentive
to appear at the initial hearing.” McNeill v. Unemployment Comp. Bd. of Review,
511 A.2d 167, 169 (Pa. 1986). If the reasons proffered for a party’s failure to attend
a hearing are “clearly legally insufficient to support the finding of good cause,” a
remand is not necessary. Volk v. Unemployment Comp. Bd. of Review, 49 A.3d 38,
47 n.12 (Pa. Cmwlth. 2012).
             Here, the Board directed the Referee on remand to “receive testimony
and evidence on [E]mployer’s reason for its nonappearance at the previous hearing”
in addition to allowing the parties to introduce new evidence on the merits. (C.R.,
Item No. 13.)      At the remand hearing, O’Brien testified that Employer’s
nonappearance was due to a change in staffing that resulted in a scheduling conflict
with Employer. (C.R., Item No. 16 at 4.) Her testimony provided the following:
             OB     We had a change in staffing.
             R      Okay.
             OB     And so part of my responsibility became as part of
                    that change to represent . . . our departments in
                    unemployment hearings.
             R      Okay

                                          7
             OB    I received the Notice and was unable—my calendar
                   did not allow us to attend and I reached out to
                   [Gibbons] and she also—her calendar was not able
                   to be freed up to attend at that time. So we had
                   requested a continuance and were denied and so
                   therefore we had no choice but to not appear to the
                   hearing.
             R     Okay. And the record is [Bd. Ex. 2,] and [Bd. Ex. 2]
                   is e-mails sent from Marie Brant.
             OB    She’s my assistant.
             R     Okay.      So someone e-mailed requesting a
                   continuance and the Referee’s office responded this
                   was received on July 11, 2016 and my office
                   responded denied the request with the reason that
                   the Employer should provide to show that a hospital
                   representative is the Employer’s sole firsthand
                   witness of the events around the Claimant’s
                   separation. Were you aware . . .
             OB    We—in our defense, we thought that it was clear
                   when we requested the continuance so we weren’t
                   sure what else to say that we weren’t available that
                   day.
             R     Okay. All right. So you believe that [Bd. Ex. 2]
                   stated clearly that the hospital representative would
                   not be available?
             OB    Right.

(Id.)   Based upon O’Brien’s testimony, the Board determined that Employer
established good cause for its nonappearance at the first hearing. (C.R., Item
No. 17.)
             Based upon O’Brien’s testimony and the Board’s reasoning, we cannot
conclude that the Board abused its discretion by ordering a remand hearing. This
Court has previously held that the Board did not abuse its discretion by ordering a
remand hearing when a claimant did not appear at a hearing and provided no notice
beforehand of his inability to participate. Michael A. Tokarsky, Jr. Trucking, Inc. v.

                                          8
Unemployment Comp. Bd. of Review, 631 A.2d 686, 690 (Pa. Cmwlth. 1993). The
Board is given “wide latitude” in making such decisions. Clowney v. Unemployment
Comp. Bd. of Review, 421 A.2d 515, 516 (Pa. Cmwlth. 1980).
             Nor can we conclude that the Board erred in determining Employer had
good cause for its nonappearance. Employer emailed the hearing office two days
prior to the hearing to request a continuance, as no representative for Employer
would be able to attend. (C.R., Item No. 16 at 4.) Further, O’Brien testified that it
was her understanding that the email conveyed that Employer would be unable to
attend the hearing due to a scheduling conflict. (Id.) The Board did not err in
concluding that Employer had good cause for its nonappearance, as the
nonappearance was not attributable to Employer’s own negligence. See Savage v.
Unemployment Comp. Bd. of Review, 491 A.2d 947, 950 (Pa. Cmwlth. 1985)
(holding that claimant’s own negligence is insufficient good cause, as a matter of
law, to justify failure to appear at referee’s hearing).
             Next, we will address Claimant’s argument that substantial evidence
does not support the Board’s findings of fact numbers 4 and 5. Substantial evidence
is defined as relevant evidence upon which a reasonable mind could base a decision.
Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa.
Cmwlth. 1986). In determining whether there is substantial evidence to support the
Board’s findings, this Court must examine the testimony in the light most favorable
to the prevailing party, giving that party the benefit of any inferences that can
logically and reasonably be drawn from the evidence. Id. A determination as to
whether substantial evidence exists to support a finding of fact can only be made
upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of
Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s findings of fact are conclusive


                                            9
on appeal only so long as the record taken as a whole contains substantial evidence
to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984).
              Regarding the Board’s finding of fact number 4—i.e., that Claimant
was informed that merely taking the test was not sufficient and she had to have the
card proving that she passed the test—Claimant argues that “any type of
documentation” showing she passed would be sufficient. (Pet’r Br. at 5.) We
disagree. At the hearing before the Referee, Employer presented evidence in the
form of a document setting forth its guidelines regarding the certification exam.
(C.R., Item No. 16, Bd. Ex. 7.) The document, signed by Claimant, states that a
“copy of the certification card” must be forwarded to Employer during the
twelve-month period in which Claimant had to pass her certification exam. (Id.)
Accordingly, the Board’s finding of fact number 4 is supported by substantial
evidence.7
              Turning to the Board’s finding of fact number 5—i.e., that Claimant
was made aware that if she did not pass the certification exam on her first attempt
then it could take up to three more months to pass the test—Claimant argues that if
she did not pass, she would have been able to take the test two more times in a
three-month period. (Pet’r Br. at 5.) This, also, is not in accord with the evidence
presented at the Referee’s hearing. O’Brien credibly testified that it could take up
to three months to be able to take the test again if Claimant did not pass the first
time, and that Employer recommends taking the test earlier if the individual has
concerns about not passing the test the first time, so that they will have ample time


       7
         Moreover, whether Employer required Claimant to have a “certification card” or “any
type of documentation” evidencing that she passed the certification exam is immaterial to our
analysis, because it is undisputed that Claimant did not pass the exam during her period of
employment with Employer.

                                             10
to take the test again. (C.R., Item No. 16 at 8.) Further, Employer produced evidence
in the form of a document, signed by Claimant, advising Claimant to take the test
early, as there is a three-month waiting period before Claimant would be able to take
the test again. (Id. at Bd. Ex. 8.) As such, the Board’s finding of fact number 5 is
supported by substantial evidence.
             We now turn to Claimant’s argument that the Board erred in concluding
that Claimant’s actions constituted willful misconduct.         Whether or not an
employee’s actions amount to willful misconduct is a question of law subject to
review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203,
1205 (Pa. Cmwlth. 1981).
             Section 402(e) of the Law provides, in part, that an employee shall be
ineligible for compensation for any week in which “his unemployment is due to his
discharge or temporary suspension from work for willful misconduct connected with
his work.”    The employer bears the burden of proving that the claimant’s
unemployment is due to the claimant’s willful misconduct. Walsh v. Unemployment
Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful
misconduct” is not defined by statute. The courts, however, have defined “willful
misconduct” as:
             (a) wanton or willful disregard of employer’s interests, (b)
             deliberate violation of the employer’s rules, (c) disregard
             of standards of behavior which an employer can rightfully
             expect of an employee, or (d) negligence indicating an
             intentional disregard of the employer’s interest or an
             employee’s duties and obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). In
cases where some form of further education or certification exam is a condition of
continued employment, academic failure after a good-faith effort is not willful


                                         11
misconduct. Millersville State Coll., Pa. Dep’t of Educ. v. Unemployment Comp.
Bd. of Review, 335 A.2d 857, 860 (Pa. Cmwlth. 1975). Where, however, the
claimant makes the decision to not pursue studies that are required by the employer,
there is willful misconduct. Id. The pertinent analysis is whether the claimant made
a good-faith effort to take and pass the exam within the allotted time period. Id.
               In Primecare, this Court was faced with an analogous situation to the
instant case, as the claimant in Primecare was a registered nurse who was required
to pass the nursing board examination and receive his permanent nursing license in
order to remain employed. Primecare, 760 A.2d at 484. The claimant failed his
examination, and the employer subsequently terminated his employment. Id. at 485.
The Board, however, found that the claimant “made a great effort in preparation for
the exam.” Id. at 486. Specifically, the Board found that the claimant studied for
approximately five hours a day for six months prior to taking the exam, sought
advice from other nursing professionals, used study materials that were accredited
and approved by the State Board of Nursing, and took two weeks off from his
employment to study. Id. Based upon the claimant’s diligence and good-faith effort,
this Court affirmed the Board’s award of benefits. Id. at 488.8
               Here, Claimant was aware of her June 1, 2016, deadline to pass her
certification exam, and Employer periodically reminded her of this. (C.R., Item No.
16 at 11-12.) Claimant was also aware that if she did not pass the test, she would
have to wait up to three months until she could take it again. (Id. at 8.) Claimant
took the test on May 26, 2016, six days prior to the deadline, and failed. (Id. at 11.)


       8
          In Primecare, this Court analyzed the claimant’s eligibility under Section 3 of the Law,
43 P.S. § 752, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, relating
to public policy, and under Section 402(e), relating to willful misconduct. The rationale, however,
is equally applicable in the instant case.

                                                12
Claimant contends that personal problems and multiple scheduling changes by the
testing center resulted in her not being able to pass her certification exam within the
necessary time frame, thus giving rise to good cause for her conduct. At the hearing,
Claimant testified to the issues she dealt with during her testing time frame. She
testified as follows:
             R      Okay. And so you were aware that you had to [pass
                    the certification exam]?
             C      Yes.
             R      So why did you delay until May?
             C      It wasn’t – I mean . . .
             R      You attempted, you know, because there is a chance
                    that you could fail it. There is a chance you could
                    have passed so why didn’t you give yourself enough
                    time so you know if you failed like it happened that
                    you had enough time to fix it before[?]
             C      No. The test and exam where I did schedule it at,
                    they were rescheduling it on me. You know they
                    were rescheduling. One time they had issues with
                    their testing site and then another time their system
                    was down. So I mean I was confident enough going
                    in that I was going to be okay with the testing and
                    everything.
             R      Okay. You said earlier that you had the exam[]
                    scheduled to hold in October.
             C      Yes.
             R      Why was the October date[] changed? Why was it
                    rescheduled?
             C      They were having issues with their testing sites.
                    They were remodeling or their system was down.
                    They didn’t really give me too much information
                    about it. Just I had to reschedule it.
             R      So the reschedule was not (inaudible)?
             C      I’m sorry. What was that?
             R      Did you not request to reschedule the date?

                                          13
               C       No. I did reschedule. It was rescheduled for . . .
               R       No. I’m asking were you the one who initiated the
                       rescheduling of the date?
               C       Yes. Yes. Well. No. No. No. They had to
                       reschedule it because the time that I -- the date that
                       I had to go there, they said that I couldn’t come there
                       that day.
               R       Do you have anything here to prove that?
               C       No I don’t have any type of paperwork. They . . .
               R       Okay. So it was rescheduled to sometime in
                       December?
               C       Um-hum. Yes. Yes.
               R       So why was it again rescheduled in December?
               C       They said the same thing. They were having
                       problems. Their systems were down. There was
                       like a virus in their testing site.
               R       And they didn’t provide you with an e-mail or
                       anything that you could present?
               C       They had – they sent me letters. Towards the end
                       of June I had a small electrical fire in my house. I
                       wasn’t able to get a lot of items out of my home so
                       a lot of my paperwork, different things were in the
                       house, but I was in contact with the testing facility.
                       They’re supposed to send me out all the
                       information. They haven’t done that yet.

(Id. at 13-14.) Claimant was unable to provide any documentation evidencing the
issues Claimant had with the testing center.9 Further, Claimant did not provide any
explanation as to why she chose to wait six months to reschedule aside from “family


       9
         In her brief, Claimant appears to contradict the testimony set forth above. She contends
that she gave the letters to her supervisor to place in her file, but her supervisor later denied that
Claimant gave her the letters. (Pet’r Br. At 8.) Our review is limited to the record before the
Board.



                                                 14
issues” and the fact that she felt “confident enough going in” that she would pass it
the first time. (Id. at 13.)
               Here, unlike in Primecare, Claimant has made a scant showing of a
good-faith effort leading up to her exam.10 Thus, the Board did not err in concluding
that Claimant’s conduct rose to the level of willful misconduct, and the Board did
not err by failing to conclude that Claimant did not have good cause for her actions.
               Accordingly, we affirm the order of the Board.



                                     P. KEVIN BROBSON, Judge




       10
            In her brief, Claimant also avers that Employer promised to provide some form of
assistance to Claimant in regards to the exam but did not. (Pet’r Br. at 8.) Claimant, however,
introduced no evidence to that effect. As such, it was Claimant’s sole responsibility to obtain the
certification, and Employer bore no responsibility to provide such assistance. See Pisarek v.
Unemployment Comp. Bd. of Review, 532 A.2d 54, 56 (Pa. Cmwlth. 1987).

                                               15
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Caitlin I. Horchuck,                  :
                       Petitioner     :
                                      :
            v.                        :   No. 2004 C.D. 2016
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


                                    ORDER


            AND NOW, this 23rd day of October, 2017, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge




                                     16
