          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Krawetz,                            :
                           Petitioner      :
                                           :
                    v.                     :   No. 302 C.D. 2015
                                           :   SUBMITTED: July 17, 2015
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :



BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                               FILED: November 3, 2015


             Claimant, Joseph Krawetz, petitions pro se for review of an order of
the Unemployment Compensation Board of Review (Board) that affirmed the
decision of a referee denying him unemployment compensation benefits,
concluding that his tardiness constituted willful misconduct under Section 402(e)
of the Unemployment Compensation Law (Law).1 We affirm.
             From November 2002 to August 2014, Claimant worked full-time as a
yard attendant for Employer Cleveland Brothers Equipment at a final hourly rate of


    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
$14.00. Referee’s September 30, 2014 Decision, Findings of Fact (F.F.) Nos. 1-3.
Claimant had a history of tardiness and Employer had previously warned him
about it and imposed a one-day suspension. Id., No. 9. On August 1, 2014,
Claimant arrived at work at 8:30 a.m., one and one-half hours after his 7:00 a.m.
start time. His alleged reason for this latest instance of tardiness was that he
simply overslept. Id., Nos. 5-8. Employer discharged Claimant on August 6 due
to his tardiness.       Id., Nos. 3 and 4. Claimant applied for unemployment
compensation benefits and the Scranton UC Service Center determined that he was
ineligible. Claimant appealed and the referee held a September 2014 hearing
where only Claimant appeared.2
               At the hearing, Claimant testified that he overslept due to taking a
muscle-relaxing medication. He did not, however, provide a doctor’s note or a
copy of his prescription. In addition, his testimony contradicted his Internet Initial
Claims form, where he averred that he simply overslept and did not appear until an
hour and a half after his scheduled start time. Id. at 2. When the referee asked
Claimant about his failure to mention the prescription medication on the claims
form, Claimant responded: “I really didn’t think about it, you know, when I was
filling out the internet form.” Certified Record (C.R.), Item No. 10, September 29,
2014 Hearing, Notes of Testimony (N.T.) at 5. In considering the contradiction in
his explanations, the referee determined that the claims form was more accurate
than Claimant’s subsequent testimony. Referee’s September 30, 2014 Decision at
2. Accordingly, noting Claimant’s acknowledgement at the hearing that he filled


    2
      The record reflects that the referee denied Employer’s request to participate in the hearing
by telephone. Certified Record (C.R.), Item Nos. 9 and 10, Employer’s Request to Testify via
Phone and September 29, 2014 Hearing, Notes of Testimony (N.T.) at 2.



                                                2
out the claims form and that Employer had previously warned him about
attendance and tardiness, the referee determined that willful misconduct was
established. Further, he concluded that Claimant failed to show good cause for his
latest episode of tardiness. Claimant appealed to the Board, which affirmed based
on the entire record. Adopting and incorporating the referee’s findings and
conclusions, the Board also specifically “discredit[ed] the claimant’s testimony
that he overslept due to taking a muscle relaxing medication.” Board’s January 27,
2015 Decision at 1. Claimant’s petition for review followed.
             Section 402(e) provides, in pertinent part, that an employee shall be
ineligible for compensation for any week “[i]n which his unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work . . . .” The term “willful misconduct” has been defined to include:
1) the wanton and willful disregard of the employer’s interests; 2) the deliberate
violation of rules; and 3) the disregard of standards of behavior which an employer
can rightfully expect of its employee. Glatfelter Barber Shop v. Unemployment
Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008). Once an employer
satisfies its prima facie case, the burden shifts to the claimant to demonstrate good
cause for his conduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158,
1162 (Pa. Cmwlth. 2012). The claimant has good cause if his action “is justifiable
or reasonable under the circumstances.” Frumento v. Unemployment Comp. Bd. of
Review, 351 A.2d 631, 634 (Pa. 1976).
             In addition, even in the absence of a detailed termination policy
regarding tardiness or specific notice that the next instance will result in discharge,
tardiness may constitute willful misconduct where it is habitual and an employee is
provided with notice that future episodes are unacceptable. Ellis v. Unemployment



                                          3
Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013). An employer has a
right to expect that its employees report to work when scheduled and arrive on
time. Id. Further, notwithstanding an employer’s absence at the referee’s hearing,
a claimant may, by his own testimony, meet an employer’s burden of establishing
willful misconduct. Moore v. Unemployment Comp. Bd. of Review, 578 A.2d 606,
608-09 (Pa. Cmwlth. 1990).
              In the present case, the Board determined that Claimant’s conduct
constituted willful misconduct where his claim form contradicted his testimony at
the hearing, he failed to bring a doctor’s note or a prescription to the hearing, his
testimony that he overslept due to the medication was discredited and he
acknowledged Employer’s previous warnings and disciplinary action from earlier
episodes of tardiness. We agree and, therefore, conclude that the record supports a
legal determination of willful misconduct.3 We turn now to Claimant’s arguments
regarding his alleged good cause for his tardiness.
              Claimant maintains that he had good cause for his tardiness, alleging
as follows: 1) after twelve years of employment, he had only three episodes of
tardiness; 2) Employer’s failure to appear at the hearing prevented him from
establishing that other employees were tardy with no repercussions; 3) after being
prescribed medication, he took the proper steps to notify Employer; 4) he was
unfamiliar with filing an online application for unemployment compensation
benefits, thus explaining his failure to include his medication on the claims form as
an excuse for his tardiness; and 5) he cured his failure to include the medication on


    3
      Whether a claimant’s actions constitute willful misconduct is a question of law over which
we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162
(Pa. Cmwlth. 2012).



                                               4
the claims form by raising it at the hearing and by attaching what purports to be a
doctor’s note and information regarding a prescription medication as appendices to
his appellate brief. Claimant’s arguments are without merit.
            Regarding the alleged number of times that Claimant was tardy for
work, we note that even a single, knowing violation of a known work rule may be
sufficient to constitute willful misconduct. Maxwell v. Unemployment Comp. Bd.
of Review, 423 A.2d 430, 432 (Pa. Cmwlth. 1980). Here, the record reflects that
Claimant admitted that he had been late at least three times and that Employer had
reprimanded him with a write-up. Claimant’s Brief at 8 and C.R., Item No. 10,
September 29, 2014 Hearing, N.T. at 5. Employer’s documentation is consistent
with Claimant’s acknowledgement, reflecting that it had issued previous warnings
and imposed a one-day suspension in April 2014. C.R., Item No. 3, Employer
Separation Information.4
            Further, notwithstanding Employer’s absence at the hearing, Claimant
had the burden to prove that Employer had been selectively applying its tardiness
rule. See Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d
970, 974 (Pa. Cmwlth. 2009) (disparate treatment of employees who engaged in
similar conduct is an affirmative defense for claimants who have engaged in
willful misconduct). At the end of the hearing, however, Claimant advised the
referee that he had no other witnesses and did not ask for a continuance in order to
secure the testimony of any witnesses regarding disparate treatment. C.R., Item
No. 10, September 29, 2014 Hearing, N.T. at 7.



   4
      At the September 29, 2014 hearing, the referee admitted Employer’s separation
information into evidence without objection.



                                         5
              As for any proper steps that Claimant may have taken to notify
Employer that he was on medication, such notification, without more, does not
vitiate Claimant’s violation of a known work rule or constitute good cause for
violation of that rule. In that regard, we emphasize that the Board rejected as not
credible Claimant’s testimony that he overslept due to taking a muscle-relaxing
medication. Instead, the Board adopted the referee’s finding that the reason that
Claimant proffered on his claims form, that he simply overslept, was the more
accurate explanation for his tardiness.       The Board is the ultimate fact finder,
“empowered to resolve conflicts in evidence, to determine the credibility of
witnesses, and to determine the weight to be accorded evidence.”            Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010).
Accordingly, we cannot disturb its credibility determination on appeal. Id.
              Moreover, regarding his unfamiliarity with filling out the online claim
form as a justification for not including his medication as an excuse for his
tardiness, we note Claimant’s statement at the hearing to the effect that he simply
did not consider it when filling out the form. Unfamiliarity with filling out a form
is somewhat different than simply not thinking of something when filling out a
form.    In any event, the Board weighed the conflicting evidence regarding
Claimant’s reason for his tardiness and found the form to be more accurate than his
subsequent self-serving testimony at the hearing. As noted, it is within the Board’s
purview to resolve conflicts in evidence and to determine the weight to be
attributed to it. Id.
              Finally, Claimant’s attempt to cure his failure to include on his claims
form a reference to any alleged medication as an excuse for his tardiness also must
fail. Regarding Claimant’s failure to bring items in support of his position to



                                          6
hearing, the referee stated: “Well, sir, today’s the date, time and place of the
hearing.” C.R., Item No. 10, September 29, 2014 Hearing, N.T. at 5. The referee
further commented that Claimant had two weeks’ notice of the hearing date. Id. In
any event, Claimant’s attachments to his appellate brief are dehors the certified
record and we may not consider them on appeal. Croft v. Unemployment Comp.
Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995).
            Accordingly, we affirm.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge




                                        7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph Krawetz,                        :
                       Petitioner      :
                                       :
                  v.                   :     No. 302 C.D. 2015
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                    ORDER


           AND NOW, this 3rd day of November, 2015, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
