               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George Mahalik,                            :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 1153 C.D. 2017
                    Respondent             :   Submitted: February 16, 2018


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: June 6, 2018

             George Mahalik (Claimant), pro se, petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) June 16, 2017 order
affirming the portion of the Referee’s decision denying him UC benefits under
Section 402(e) of the UC Law (Law),1 and reversing the portion of the Referee’s
decision assessing a non-fault overpayment and, imposing a fault overpayment and
penalties. There are two issues before this Court: (1) whether the UCBR erred by
concluding that Claimant committed willful misconduct, and (2) whether the UCBR
erred by assessing a fault overpayment and imposing penalties. After review, we
affirm.
             Claimant was employed by Keystone Certifications, Inc. (Employer)
from March 2011 until December 27, 2016.             Claimant worked as a StarGuard


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
engineer,2 until Employer eliminated Claimant’s position for business reasons in
November 2016, at which time Claimant accepted a full-time program administrator
position. Claimant’s program administrator job was similar to Claimant’s former
position, but required him to work with different products. Although Employer
trained Claimant on the new products, Claimant did not put effort into learning the
information and performing the job. In a December 19, 2016 meeting with his
supervisors (December 19 meeting), Claimant expressed to his manager that he had
no interest in learning the new job. On December 27, 2016, Employer terminated
Claimant’s employment based on his lack of effort, and his statement that he had no
desire to perform the program administrator duties. Employer’s December 27, 2016
employment termination letter also referenced concerns about Claimant’s punctuality
and job performance.
             On December 29, 2016, Claimant applied for UC benefits. According to
the Pennsylvania Department of Labor and Industry’s (Department) Claim Record,
Claimant reported that his employment separation resulted from a lack of work.
Claimant received $1,136.00 in UC benefits for claim weeks ending January 14 and
21, 2017. However, on January 23, 2017, Employer notified the Duquesne UC
Service Center (Service Center) that Claimant had been discharged from his position.
On January 31, 2017, the Service Center informed Claimant that he was not eligible
for UC benefits pursuant to Section 402(e) of the Law. In addition, the Service
Center notified Claimant that, due to his knowing failure to inform the Department
that he was discharged from his employment, he had received UC benefits to which
he was not entitled. It further advised that, because a fault overpayment had been
established, Claimant was required to repay the overpayment and was subject to



      2
        As a StarGuard engineer, Claimant reviewed various products, including imaging
equipment and roof products, for the Environmental Protection Agency’s Energy Star program.
                                            2
penalties under Section 801 of the Law.3 Claimant appealed, and Referee hearings
were held on February 27 and March 9, 2017, at which Employer presented the
testimony of its President Jonathan Hill (Hill), Employer’s StarGuard Program
Manager and Quality Assistance Manager Daniel Shiflet (Shiflet), and Employer’s
Validation Manager Jonathan Martini (Martini).4
              Hill testified that Employer terminated Claimant’s employment because
Claimant was not applying himself to learn his new job duties and told his supervisor
that he was not interested in doing so. Hill stated that Employer became concerned
with Claimant’s work performance during his training. He explained:

              [W]e have trained other people for this position who
              became productive after a couple days of training, maybe a
              week or so. But after two weeks of training, [Claimant] did
              not – he wasn’t taking notes. He wasn’t becoming able to
              do the work. And essentially, it’s the same work he was
              doing before for different product types.
       3
         43 P.S. § 871. The UCBR assessed four penalty weeks pursuant to Section 801(b) of the
Law, and a 15% penalty pursuant to Section 801(c) of the Law. At the time Claimant filed his UC
claim, Section 801 of the Law established penalties in such circumstances. Section 801(b) and (c)
of the Law provided:
              (b) Whoever makes a false statement knowing it to be false, or
              knowingly fails to disclose a material fact to obtain or increase any
              compensation or other payment under this [Law] . . . may be
              disqualified in addition to such week or weeks of improper payments
              for a penalty period of two weeks and for not more than one
              additional week for each such week of improper payment . . . .
              (c) Whoever makes a false statement knowing it to be false, or
              knowingly fails to disclose a material fact to obtain or increase
              compensation or other payment under this act . . . and as a result
              receives compensation to which he is not entitled shall be liable to
              pay to the [UC] Fund a sum equal to fifteen per centum (15%) of the
              amount of the compensation. . . .
43 P.S. § 871(b), (c). Section 801 of the Law was amended by Section 10 of the Act of November
3, 2016, P.L. 1100, and, inter alia, substituted “five weeks” for “two weeks” in subsection (b).
However, the amendment did not become effective until May 2, 2017.
       4
          The February 28, 2017 Notice of Hearing identified the issues to be considered at the
hearing, but did not include the overpayment issue.
                                               3
Certified Record (C.R.) Item No. 10, Notes of Testimony (N.T.), February 27, 2017,
at 8. Hill expounded:

             [A]fter receiving the training that others had received,
             [Claimant] was given a project or a product to evaluate,
             which should have took [sic] about four hours to complete.
             And after four hours, the next day, he was only about 25
             percent complete with the project. And, you know, we
             found him doing other things like being online . . . .

Id. at 9. Hill asserted that, when confronted at the December 19 meeting about his
lack of progress on the project, Claimant informed Shiflet that he was not interested
in learning the new position.
             Shiflet testified that Claimant expressed that he did not have interest in
working for Employer in his current capacity.         Shiflet stated that, as a result,
management “had to regroup . . . and make a decision and think about that because
ultimately we didn’t want to lose [Claimant]. We wanted to develop him, but it just
wasn’t working.” Id. at 14.
             Martini explained:

             [W]e had provided [Claimant] with . . . a little over 40
             hours of training, and he and I had just finished a training
             on the morning of the 16th for a casement window. . . .
             [I]t’s a very simple form of a window for certification. It
             took us three hours with training to finish that. . . . In the
             afternoon, [Claimant] was directed to work on an awning,
             which is the exact same window just turned on its side. So,
             he was instructed that . . . with the ample time to do the
             work, it should take no more than four hours to do this
             based on [the fact that] it took us collectively three hours to
             do a very similar one with training involved. So, I allowed
             him to continue working on it in that afternoon. At 4:45, I
             touched base[] with him. . . . Now mind you, it was
             supposed to take four hours to begin with. It’s already
             taken four hours, and only 25 percent was done. I checked
             with him at the end of the day on Friday, and he was not
             even . . . 60, 70 percent done with it, so there is 12 hours
             into it. . . . [I]t wasn’t until midday Monday that he e-

                                           4
            mailed me back with an incomplete validation and said, I
            am done with this. I am moving on to some other work
            now. And that was the point where [Shiflet] and I brought
            him in at that point. It was actually at 12:40 when we got
            back from lunch, and he was reading his sermons while
            listening to the audio and watching [church sermon
            PowerPoint presentations].

C.R. Item No. 11, N.T., March 9, 2017, at 14. Martini expounded:

            We brought him – at 12:40, after we saw that, I [told
            Shiflet], I’m going to bring him. Let’s sit down. [Shiflet]
            and I both sat down in my office with Claimant and
            explained to him that – when it is appropriate to do work,
            when it was not. And we talked about the new position.
            And both by his actions of dragging his feet on them and
            taking sixteen hours to not even do something that should
            have taken four and he verbally admitted to us that he
            wasn’t interested in doing this work even though it was very
            comparable to what he was doing before, which is
            reviewing test reports and checking for validity of the
            reports, which goes hand-in-hand – I think all of us are
            cross-trained on every aspect of our jobs there. And he
            looked at [Shiflet] and I and said, I don’t want to do this
            job.

Id. at 15. Martini further summarized:

            [W]hat prompted the December 19 meeting was that
            [Claimant] had taken his full lunch period to watch sermons
            and then additional time after that lunch period leading into
            15 minutes after his lunch period to watch sermons and his
            plan was to eat later in the day and take his lunch even
            though he’d already taken time to not work during his lunch
            period.

Id. at 33. According to Martini, at approximately 2:30 p.m. after the December 19
meeting, Claimant left his desk with his lunchbox, went to the kitchen, microwaved
his food and then went into the bathroom to eat his lunch.
            Claimant testified that in his StarGuard engineer position with
Employer, he was responsible for reviewing products for the Environmental


                                          5
Protection Agency’s Energy Star Program.              The products included imaging
equipment, set-top boxes and roof products. The new position involved reviewing
window types. Claimant admitted he was trained in the new position by an individual
named Shawn Shaw, explaining:

                 Shawn Shaw did a product pretty much with me shadowing
                 him or watching him. And he explained that. He did a
                 good job. And from there he did – it took several days I
                 think or at least a day and a half. And then, from there, I
                 believe [Martini] and I did a product together or at least
                 partial product together at his desk where again I was
                 overshadowed, [sic] but also – I was shadowing, but also it
                 was interaction. I mean it was training.

Id. at 23. Claimant stated that the training occurred over “several days.” Id. He
admitted that “during [training] – when we were performing them, I didn’t take many
notes because I would miss the next thing we were doing. But as I was doing them
myself, after that, I took a lot of notes.” Id. at 24. Claimant also conceded that he
struggled at the new position “understanding how the job should be done – it wasn’t
clear . . . it was so different than what we had before as far as documentation and how
to do it.” Id.
                 Claimant denied telling Employer that he was unwilling to learn the new
job, and recalled that he told Employer, “I’ll do whatever you want.” Id. at 25.
However, when asked if he told Employer that he did not want the new position, he
stated, “I might have said I preferred the old position. I don’t recall saying I don’t
want the new position, no.” Id. Claimant further explained that he “tried very hard at
the new position.” Id. Claimant admitted to watching videos on his computer at his
desk during his lunch hour, and claimed it was common for him to eat lunch at his
desk.   He also acknowledged signing the employee handbook which contained
restrictions on using company computers for personal use.



                                             6
              Finally, Claimant testified that he believed that he filed his UC claim
online, but he may have spoken to someone as well.                    He expressed confusion
regarding the meaning of the Department’s specific language, and his option choice
when informing the Department about the reasons for his unemployment.
              On March 16, 2017, the Referee affirmed the UC Service Center’s
determination that Claimant was ineligible for UC benefits. However, the Referee
modified the fault overpayment to a non-fault overpayment, and reversed the penalty
determination, finding that “[t]he record is void of competent credible evidence
establishing that [Claimant] made a false statement knowing it to be false or
knowingly failed to disclose a material fact in order to obtain or increase his
benefits.” C.R. Item No. 12, Referee Decision, March 16, 2017, at 4. Claimant
appealed to the UCBR.           On June 16, 2017, the UCBR affirmed the Referee’s
determination that Claimant was ineligible for benefits, but ruled that Claimant had
received a fault overpayment and assessed four penalty weeks and a 15% monetary
penalty. Claimant appealed to this Court.5
              Claimant first argues that the UCBR erred in concluding that Claimant
had engaged in willful misconduct, because the UCBR’s conclusion is based on
Employer’s witnesses’ untruthful testimony and fictitious documents, and because his
conduct did not constitute willful misconduct.
              This Court has explained:

              In [UC] proceedings, the [UCBR] is the ultimate fact finder
              and is empowered to resolve conflicts in the evidence and to
              determine the credibility of witnesses. Findings made by
              the [UCBR] are conclusive and binding on appeal if the


       5
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
                                                 7
              record, examined as a whole, contains substantial evidence
              to support the findings.

Owoc v. Unemployment Comp. Bd. of Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002)
(citation omitted).     “[This] Court may not reweigh the evidence.”               Porco v.
Unemployment Comp. Bd. of Review, 828 A.2d 426, 429 (Pa. Cmwlth. 2003).
              Claimant contends he was willing to learn his new job, but the new
position was very different from his old position. He also asserts that the new
position’s responsibilities were not clearly defined, that management was ineffective,
and that Employer’s training was inadequate.           Further, Claimant denies that he
improperly engaged in personal activities during work time. Notwithstanding, the
UCBR, as it is permitted to do, found Employer’s witnesses credible and resolved
conflicts regarding Claimant’s effort, his interest in learning the new job, and his
computer use, in Employer’s favor. See C.R. Item No. 16, UCBR Decision and
Order (UCBR Decision) at 3.
              Claimant also maintains that although he may have not have performed
up to Employer’s expectations, he worked to the best of his abilities,6 and evidence
did not establish that Claimant engaged in willful misconduct. Specifically, Claimant
contends that “[t]here wasn’t evidence that [he] did not engage in training or was
unwilling to learn, nor is there evidence that [Employer] had a work rule that required
an employee to want to learn a new product.” Claimant Br. at 7-8.
              “The issue of whether Claimant’s conduct constituted willful misconduct
under Section 402(e) of the Law is a question of law fully reviewable by this Court.”
Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1010 (Pa. Cmwlth.
2014). This Court has explained:

              Although the Law does not define willful misconduct, it has
              been construed by our Court as: (1) the wanton or willful

       6
           The UCBR explicitly rejected Claimant’s testimony that he worked to the best of his
abilities. See UCBR Decision at 3.
                                              8
            disregard of the employer’s interests; (2) the deliberate
            violation of the employer’s rules/directives; (3) the
            disregard of the standards of behavior which an employer
            can rightfully expect from an employee; and (4) negligence
            demonstrating an intentional disregard of the employer’s
            interest or the employee’s duties and obligations. The
            employer bears the burden to prove that a discharged
            employee was guilty of willful misconduct.
            We note that mere incompetence, inexperience, or inability
            to perform a job generally will not support a finding of
            willful misconduct. However, it is well-established that
            an employee’s failure to work up to his or her full,
            proven ability, especially after multiple warnings
            regarding poor work performance, must be construed as
            willful misconduct because such conduct demonstrates
            an intentional disregard of the employer’s interest or the
            employee’s obligations and duties.

Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647-48 (Pa. Cmwlth.
2012) (footnote and citations omitted; emphasis added). Similarly, in Gardner v.
Unemployment Compensation Board of Review, 454 A.2d 1208 (Pa. Cmwlth. 1983),
this Court stated: “Poor work performance reflecting an unwillingness to work to the
best of one’s ability is indicative of a disregard for the standard of conduct an
employer has a right to expect and may rise to the level of willful misconduct.” Id. at
1209; see also Geslao v. Unemployment Comp. Bd. of Review, 519 A.2d 1096 (Pa.
Cmwlth. 1987); Markley v. Unemployment Comp. Bd. of Review, 407 A.2d 144 (Pa.
Cmwlth. 1979).
            Employer’s witnesses’ testimony evidenced Claimant’s failure to timely
complete his project, his lack of urgency as reflected by his personal video viewing
on his work computer, and his expressed disinterest in his new position. Such
behavior demonstrated Claimant’s unwillingness to work to the best of his abilities
and his disregard of Employer’s interests when contrasted with his performance in his
prior similar position. For these reasons, this Court discerns no error in the UCBR’s
conclusion that Employer met its burden of proving willful misconduct.
                                          9
             Claimant next asserts that the UCBR erred by assessing a fault
overpayment and imposing a penalty, when he did not knowingly make a false
statement in his UC benefit application.
             Initially, with respect to the repayment of UC benefits received for
which a claimant is not entitled, Section 804(a) of the Law provides: “Any person
who by reason of his fault has received any sum as compensation under this [Law] to
which he was not entitled, shall be liable to repay to the [UC] Fund . . . .” 43 P.S. §
874(a). This Court has explained:

             The word ‘fault’ within the meaning of Section 804(a) of
             the Law connotes ‘an act to which blame, censure,
             impropriety, shortcoming or culpability attaches. . . .’ Kelly
             v. Unemployment Comp[.] B[d.] of Review, 840 A.2d 469,
             473 (Pa. Cmwlth. 2004).[7] Conduct that is designed
             improperly and intentionally to mislead the unemployment
             compensation authorities is sufficient to establish a fault
             overpayment. Id. For example, an intentional misstatement
             on an application for benefits can support a finding of fault.
             Matvey v. Unemployment Comp[.] B[d.] of Review, . . . 531
             A.2d 840, 844 ([Pa. Cmwlth.] 1987). To find fault, the
             [UCBR] must make some findings with regard to a
             claimant’s state of mind.

Chishko v. Unemployment Comp. Bd. of Review, 934 A.2d 172, 177 (Pa. Cmwlth.
2007) (emphasis added). Further, this Court has held that where a claimant merely
makes a mistake, and does not “wantonly disregard[] the truth of the information” or
act in a grossly negligent way, such conduct does not support a finding of fault. Fugh
v. Unemployment Comp. Bd. of Review, 153 A.3d 1169, 1177 (Pa. Cmwlth. 2017).
Thus, “[t]he commission of a mere voluntary act does not establish fault.             The
[UCBR] cannot hold a claimant liable for a fault overpayment for a mere mistake or
confusion.” Id. (citation omitted).


      7
         Kelly was overruled on other grounds by Crocker v. Unemployment Compensation Board
of Review, 63 A.3d 496 (Pa. Cmwlth. 2013).
                                            10
            Here, the UCBR explicitly found that “[C]laimant intentionally withheld
the fact of his termination in order to obtain benefits.” UCBR Decision at 2, Finding
of Fact No. 10. The UCBR’s findings must be based on substantial evidence. Owoc.
The UCBR explained that finding as follows:

            Contrary to the Referee’s decision, the claim record
            supports the Department’s finding that when filing for
            benefits, [Claimant] reported lack of work. The claim
            record states: ‘170109*IVR REASON FOR SEP = LOW CWE
            17/01/17.’ In addition, at the hearing, [Claimant] admitted
            that he told the Department that he had been laid off and did
            not tell it that he had been discharged. Because [Claimant]
            knew that he had been discharged but intentionally failed to
            report it to the Department when filing for benefits, the
            [UCBR] concludes that the overpayment was due to
            [Claimant’s] fault and that the penalties imposed by the
            Department were appropriate.

UCBR Decision at 3.
            The UCBR was entitled to judge Claimant’s credibility. Owoc. Further,
the UCBR’s factual findings are based on the record evidence. Accordingly, we
discern no error in the UCBR’s assessment of a fault overpayment and imposition of
penalty.
            For all of the above reasons, the UCBR’s order is affirmed.


                                        __________________________
                                        ANNE E. COVEY, Judge




                                         11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


George Mahalik,                        :
                        Petitioner     :
                                       :
                  v.                   :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 1153 C.D. 2017
                    Respondent         :


                                     ORDER

            AND NOW, this 6th day of June, 2018, the Unemployment
Compensation Board of Review’s June 16, 2017 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
