            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kerry S. Kramer,                              :
                            Petitioner        :
                                              :
              v.                              :   No. 2276 C.D. 2015
                                              :   Submitted: June 10, 2016
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: August 25, 2016



              Petitioner Kerry S. Kramer (Claimant) petitions for review of an order
of the Unemployment Compensation Board of Review (Board).                        The Board
affirmed an Unemployment Compensation Referee’s (Referee) decision denying
Claimant unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law),1 because Claimant engaged in willful
misconduct without good cause. For the reasons set forth below, we affirm.
              Claimant applied for unemployment compensation benefits after
being discharged from his employment as a motor coach operator for Trans-Bridge

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e). Section 402(e) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to “willful misconduct
in connection with his work.”
Lines, Inc. (Employer).      (Reproduced Record (R.R.) at 2a.)      Claimant was
discharged for his involvement in a physical altercation with a passenger. (R.R.
at 2a.) The Allentown UC Service Center (Service Center) issued a determination
finding Claimant eligible for benefits, which Employer subsequently appealed.
(R.R. at 17a.)
             A Referee conducted a hearing on September 15, 2015. (R.R. at 7a.)
The sole issue on appeal was whether Claimant’s employment was terminated for
willful misconduct in connection with his work. (R.R. at 9a.) The Referee made
the following relevant findings of fact:

             1.    The employer’s union contract requires employees
                   to have a hearing before they are discharged unless
                   the discharge is for violent behavior.

             2.    The claimant was or should have been aware of his
                   union contract.

             3.    On July 6, 2015, the claimant was driving a
                   passenger bus from Pennsylvania to New Jersey.

             4.    The claimant became concerned about the
                   behavior of some of his passengers.

             5.    The claimant stopped his bus on the New Jersey
                   Turnpike and told the passengers to quiet down.

             6.    The claimant did not allow the passengers to
                   explain a problem one of the passengers
                   experienced and repeatedly told the passengers to
                   be quiet and threatened to call the police.

             7.    The claimant began an argument with a female
                   passenger and advanced toward the passenger until
                   he was standing over the seated passenger and
                   yelling at her.


                                           2
             8.     The passenger pushed the claimant away from her
                    and began to stand.

             9.     The claimant shoved the female passenger with
                    both hands as she attempted to stand.

             10.    The female passenger was propelled back into her
                    seat by the claimant’s shove.

             11.    The other passengers loudly objected to the
                    claimant’s conduct.

             12.    The claimant contacted the police and ordered a
                    few of the passengers off the bus.

             13.    The employer discharged the claimant for violently
                    shoving a passenger.

(R.R. at 2a, 3a.)
             The Referee rejected Claimant’s assertion that self-defense justified
his actions as good cause for deviation from the workplace policy. (R.R. at 3a.)
The Referee found that Claimant, instead of attempting to retreat from the situation
or deescalate the conflict, advanced toward a female passenger and engaged in a
face-to-face argument that led to exchanged shoves.        (Id.)   Additionally, the
Referee dismissed Claimant’s accusations against the passengers alleging gang
affiliations and drug usage, finding that such allegations are not supported by
substantial evidence. (Id.)    Accordingly, Claimant’s testimony was rejected as
unreliable. (Id.)
             Based on these findings, the Referee reversed the determination of the
Allentown UC Service Center and concluded that Claimant was ineligible for
benefits under Section 402(e) of the Law. (Id.) Claimant appealed to the Board,
which affirmed the Referee’s decision and adopted the Referee’s findings and
conclusions. (R.R. at 1.) Claimant now petitions for review with this Court.

                                         3
               On appeal to this Court,2 Claimant first argues that the Referee’s
findings of fact, as adopted and incorporated by the Board, were not supported by
substantial evidence.3 Second, Claimant argues that the Board erred as a matter of
law in failing to take into consideration the totality of the circumstances
surrounding his altercation, specifically that the State Police were called on the day
in question and they removed multiple passengers from the bus.
               We first address Claimant’s argument that the Board’s findings were
not supported by substantial evidence. Substantial evidence is defined as relevant
evidence upon which a reasonable mind could base a conclusion. 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
on appeal 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). Even if



       2
         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.
       3
           While Claimant fails to specifically challenge any individual finding of fact, it appears
that it is Claimant’s intent to challenge finding of fact number 8, in which Claimant was found to
be the instigator of the altercation that resulted in his dismissal.


                                                 4
evidence exists in the record that could support a contrary conclusion, it does not
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             The Board, affirming the determination of the Referee, found
Claimant’s testimony that he felt threatened and acted in self-defense to not be
credible. In an unemployment case, 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.       Peak v. Unemployment Comp. Bd. of
Review, 501 A.2d 1383, 1386 (Pa. 1985). Questions of credibility are not subject
to re-evaluation on judicial review. Id. at 1388.
             Here, a review of the record reveals that Employer presented
substantial evidence to support the findings of the Referee. Employer offered
video evidence of the physical altercation in which Claimant was involved. (R.R.
at 3a.) The video of the altercation substantiated the findings that Claimant, while
apparently in a verbal altercation, advanced towards a seated female passenger
until he was standing over her, with words continuing to be exchanged. (R.R. at
2a, 3a.) Thereafter, the seated passenger pushed Claimant away and attempted to
stand. (Id.) The video then showed that Claimant shoved the passenger with both
hands as she attempted to stand, causing her to be propelled back into her seat.
(Id.) The video did not show any attempt on behalf of Claimant to retreat or
deescalate the situation prior to engaging in the altercation. Because the Board did
not find Claimant’s testimony claiming self-defense to be credible, we find that the
Board’s findings of fact are supported by substantial evidence.




                                          5
              Finally, we address Claimant’s argument that the Board erred in
concluding that Claimant’s actions constituted willful misconduct4 when it failed to
take into consideration the fact that police officers asked multiple passengers to get
off the bus after the physical altercation. The extent of Claimant’s argument under
this theory is as follows: “[i]t is difficult to justify the finding that the [Claimant]
engaged in ‘willful misconduct,’ given the fact that the four disruptive passengers
were removed from the Petitioner’s bus by the New Jersey State [P]olice. This
included the female passenger who was causing all of the protests.” (Claimant’s
Br. at 11.)
              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 for an employer’s
              interests; (b) deliberate violation of an employer’s rules;
              (c) disregard for 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 or
              obligations.



       4
         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).


                                              6
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Once an employer has met its burden to establish willful misconduct, the burden
then shifts to the claimant to show good cause as justification for the conduct
considered willful.        McKeesport Hosp. v. Unemployment Comp. Bd. of
Review, 625 A.2d 112, 114 (Pa. Cmwlth. 2013). An employer seeking to prove
willful misconduct by showing that the claimant violated the employer’s rules or
policies must prove the existence of the rule or policy and that the claimant
violated it. Walsh, 943 A.2d at 369. If the claimant can show good cause for the
violation—i.e., “that the actions which resulted in the discharge were justifiable
and reasonable under the circumstances,” then the Board should not conclude that
an employee’s conduct constitutes willful misconduct. Id.
              First, we must determine whether Employer sustained its burden and
established a prima facie case of willful misconduct. As previously stated, where
an employee is discharged for a violation of the employer’s rule or policy, the
employer must establish the existence of the policy and that the employee was
aware of the policy. Williams v. Unemployment Comp. Bd. of Review, 926 A.2d
568, 571 (Pa. Cmwlth. 2007). The Board found that Employer has a policy
regarding violent behavior in the workplace,5 and Employer discharged Claimant

       5
         During the hearing, when asked to briefly summarize what the workplace policy
contained in regards to violent behavior in the workplace, Employer said the following:
       “An employee shall not be suspended, discharged, held off, have (inaudible)
       against him and now the first time in the hearing. The only exceptions to this
       would be theft, improper handling of fares, possession of firearms, use of
       intoxicants or narcotics before going on duty, and for violent behavior,
       harassment, or serious accidents. An officer of the union is to be notified as
       promptly as possible in these exceptions.”
(R.R. at 13a (emphasis added).)


                                             7
for violating this policy. (R.R. at 1a.) Further, the Board found that Claimant was
aware or should have been aware of the policy. (Id.) Although “violent behavior”
is undefined in the Employer’s policy, the Board adopted the Referee’s finding that
Claimant’s actions constituted such behavior. As such, the Board concluded that
Employer sustained its burden to establish a prima facie case of willful
misconduct.
              Because Employer satisfied its burden to prove a prima facie case of
willful misconduct, the burden shifted to Claimant to prove he had good cause for
deviating from the policy. To prove “good cause” the claimant must demonstrate
that his actions were justifiable and reasonable under the circumstances.
Walsh, 943 A.2d at 369. In support of his argument that he acted with good cause,
Claimant urges the Court to consider the circumstances surrounding his actions. In
this case, Claimant was concentrating on operating a motor vehicle on the New
Jersey Turnpike when he was confronted with what Claimant saw as a potentially
dangerous situation. Further, Claimant points to prior instances in which Claimant
was concerned about gang sign graffiti on the side of buses and that Claimant had
been contacted by a Drug Enforcement Administration (DEA) agent regarding
drug trafficking and heroin use by some passengers. Claimant argues that based on
a totality of the circumstances, including his prior experiences, it was reasonable
for Claimant to feel threatened and act in self-defense. Thus, Claimant contends he
had good cause for his actions.
              In prior jurisprudence involving the defense of good cause for an
employee’s violent actions, this Court has previously held that good cause can be
found notwithstanding the fact that a claimant made physical contact with another
individual. See Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484 (Pa.


                                         8
Cmwlth. 2014); Peeples v. Unemployment Comp. Bd. of Review, 522 A.2d 680 (Pa.
Cmwlth. 1987); Sun Oil Co. v. Commonwealth, 408 A.2d 1169 (Pa.
Cmwlth. 1979). In each of the aforementioned cases, this Court held that the
respective claimants were eligible for unemployment compensation benefits
despite engaging in violent contact with another employee.
             In Peeples, the claimant was a forklift operator who was discharged
from his employment after a physical altercation with another employee, in
violation of a workplace policy prohibiting fighting. Peeples, 522 A.2d at 681. On
the day of the incident, the claimant was in his forklift when another employee
approached the claimant, wanting him to vacate the forklift so that the other
employee could use it. Id. The claimant declined the other employee’s demand, at
which time an argument ensued, culminating in an exchange of violent contact
between the parties. Id. The claimant originally was determined to be ineligible
for unemployment compensation benefits until this Court reversed the Board’s
decision, thereby granting the claimant benefits. Id. at 683. In doing so, this Court
found that the claimant was not the aggressor, as the other employee accosted the
claimant while he was inside his forklift with no ability to retreat.
Id. at 682. Under these circumstances, the claimant “had no choice but to defend
himself after words of solace and his own inactivity had proved ineffective.” Id.
In this instance, it was found that self-defense was a necessity, as there was no
other reasonable avenue for the claimant to follow given the exigencies of the
circumstances.
             This Court finds Peeples to be distinguishable from the instant case,
as not only did Claimant have ample opportunity to deescalate the situation,
Claimant was also the main aggressor.         When viewing the available video


                                         9
recordings of the incident between Claimant and the passenger, it becomes clear
that the video corroborates the finding of violent contact, in violation of the
workplace policy. What the video does not corroborate, however, is Claimant’s
theory of self-defense. The video clearly shows Claimant advancing towards the
passenger and engaging in a verbal argument, after which time the physical
conflict occurred.   At no point prior to Claimant shoving the passenger did
Claimant attempt to deescalate the situation or retreat back to the driver’s seat.
Further, after making the initial contact with the passenger, Claimant continued to
advance towards the passenger and stand over her momentarily, before ultimately
returning to the front of the bus to call for assistance.   In regards to the physical
altercation with the passenger, the Referee, finding the same as this Court, opined
that:
             The employer offered video evidence of a physical
             altercation between the claimant and a passenger. The
             claimant alleged that he felt threatened and that he
             shoved the passenger in self-defense. However, the
             claimant did not attempt to retreat from the situation or to
             deescalate the conflict. Instead, the claimant advanced
             toward a female passenger and engaged in a face-to-face
             argument that led to exchanged shoves. Under these
             circumstances, the claimant has not established that his
             conduct was self-defense and the claimant’s involvement
             in a physical altercation is disqualifying.
(R.R. at 3a.)   Claimant was not without ample opportunity to deescalate the
situation. Where simple communication in an attempt to understand what the issue
was could have served to alleviate the situation, Claimant played the role of
aggressor, and threatened police involvement at a time when such was not
necessary. In situations wherein the claimant is found to be the aggressor, a claim



                                          10
of self-defense simply cannot be supported. See Mula v. Commonwealth, 407 A.2d
477 (Pa. Cmwlth. 1979).
                A review of the record shows that neither the Referee nor the Board
found Claimant’s recollection of the circumstances to be credible, and found
Claimant’s testimony to be inconsistent with what actually happened. The Referee
reasoned as follows:
                The claimant admitted that he had difficulty accurately
                recalling the events on June 6, 2015 and offered
                testimony that was inconsistent with the video and
                documentary evidence offered by the employer. Further,
                the claimant made baseless accusations against his
                passengers accusing them of using heroin and being
                affiliated with criminal gangs, none of which was
                supported by the evidence. Therefore, the claimant’s
                testimony is rejected as unreliable and the employer[’s]
                witnesses’ testimony is accepted as credible.
(R.R. at 3a.)

                The Board, in adopting the Referee’s findings and conclusions, found
Claimant’s testimony to be not credible and found the testimony of Employer’s
witnesses to be credible. As previously stated, the Board is entitled to make such
credibility determinations. Peak, 501 A.2d at 1386. Because the Board found
Claimant’s testimony to be not credible, the Board did not err in not giving
credibility to the totality of the circumstances as Claimant perceived them.
                Accordingly, we affirm the order of the Board.




                                  P. KEVIN BROBSON, Judge

                                           11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kerry S. Kramer,                    :
                     Petitioner     :
                                    :
           v.                       :   No. 2276 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :



                                  ORDER


           AND NOW, this 25th day of August, 2016, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
