         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Matakovich,                            :
                                               :
                      Petitioner               :
                                               :
              v.                               : No. 1298 C.D. 2016
                                               : Submitted: January 13, 2017
Unemployment Compensation                      :
Board of Review,                               :
                                               :
                      Respondent               :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                              FILED: March 29, 2017

              Stephen Matakovich (Claimant) petitions for review of the July 13,
2016 order of the Unemployment Compensation Board of Review (Board)
concluding that Claimant was ineligible for unemployment compensation benefits
under Section 402(e) of the Unemployment Compensation Law1 (Law) because he
violated the policies and procedures of his employer, the City of Pittsburgh Police
Department (Employer) and his conduct in doing so amounted to willful
misconduct under the Law. We affirm.



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 that an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
             Claimant was employed full-time as a police sergeant with Employer
from January 3, 1994 through December 2, 2015. (Record Item (R. Item) 12,
Referee’s Decision/Order, Findings of Fact (F.F.) ¶ 1.) On November 28, 2015,
Claimant was working a detail at Heinz Field, during a high school championship
football game, when he was called by security guards also working there and
requested to go to Gate 5, where an intoxicated male was being detained by the
security guards. (R. Item 12, F.F. ¶ 10; R. Item 11, Referee’s Hearing: Transcript
of Testimony (H.T.) at 68.) As a result of incidents that occurred during and
following Claimant’s encounter with the intoxicated male (referred to herein as the
“actor”), Claimant was discharged from his employment and filed an internet
initial claim for unemployment compensation; Claimant listed as the reasons for
the actions that caused him to be discharged, that he “was making a lawful arrest,
[he] was forced to fight the actor, the Chief believes that my actions were
excessive, despite the actor not being injured.” (R. Item 2, Internet Initial Claims.)
             The Department issued a Notice of Determination finding Claimant
ineligible for unemployment compensation. (R. Item 5, Notice of Determination.)
Claimant petitioned for review of the Department’s Notice of Determination and
hearings were held before a Referee on April 26, 2016 and on May 11, 2016. (R.
Items 9 and 11, Referee’s Hearing: Transcripts of Testimony.)
             At the April 26, 2016 hearing, Employer was represented by its Tax
Consultant Representative (ETC Rep), who presented the testimony of five
witnesses: Employer’s Director of Public Safety; Victor Joseph, Jr., Employer’s
Rear Police Lieutenant, Major Crimes (Lt. Joseph); Timothy Williams, Director of
Security, Heinz Field; Todd Siegal, City of Pittsburgh Director of Personnel; and
Jenifer Matson, City of Pittsburgh Assistant Director of Personnel. At the May 11,


                                          2
2016 hearing, Employer’s ETC Rep appeared, and the Director of Public Safety
and Lt. Joseph testified for Employer. Claimant, represented by counsel, testified
at both hearings, together with witness Robert Swartzwelder, a Master Police
Officer (Swartzwelder). At the May 11, 2016 hearing, a second witness for
Claimant, Bryan Campbell, the attorney for the Fraternal Order of Police
(Campbell), testified. At the second hearing, the Referee devoted extensive time to
the viewing of a surveillance video of the incident, taken at Heinz Field, with
narration offered during the hearing by both Claimant and Employer’s witnesses.
Following the May 11, 2016 hearing, the Referee issued a decision and order
affirming the Notice of Determination; Claimant then appealed the Referee’s
decision to the Board.
              On July 13, 2016, the Board issued a decision and order affirming the
Referee’s conclusion that Claimant was ineligible to receive unemployment
compensation under the Law because he was discharged from his employment due
to willful misconduct. (R. Item 16, Board Decision and Order.) Claimant then
petitioned this Court for review of the Board’s decision and order.2
              In its decision, the Board adopted and incorporated the Referee’s
findings of fact and conclusions or law, including the following relevant findings:

              2. In 1997, the City of Pittsburgh implemented a use of
              force policy and established an Office of Municipal

2
  This Court’s scope of review is limited to determining whether findings of facts are supported
by substantial evidence, whether errors of law were committed, and whether constitutional rights
were violated. Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194, 197 n.3
(Pa. 1996). Substantial evidence is defined as “such relevant evidence which a reasonable mind
would accept as adequate to support a conclusion.” Guthrie v. Unemployment Compensation
Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Where the Board’s findings of fact are
supported by substantial evidence, the findings are conclusive on appeal. Graham v.
Unemployment Compensation Board of Review, 840 A.2d 1054, 1059 (Pa. Cmwlth. 2004).
                                               3
Investigations as part of an agreement to resolve
allegations of a pattern or practice of conduct by law
enforcement officers of the Pittsburgh Bureau of Police
that deprived persons of rights, privileges, and
immunities secured and protected by the Constitution and
laws of the United States.

3. The Office of Municipal Investigations (OMI) is an
independent agency allowing citizens to come forward
with complaints of police misconduct without fear of
retribution or retaliation.

4. Per Consent Decree of April 16, 1997, final authority
and responsibility for determining the disposition of a
citizen complaint shall rest with OMI.

5. Upon completion of an OMI investigation, the
findings and conclusions are given to the Chief of Police
who processes the findings in compliance with the
Working Agreement between the City of Pittsburgh and
the Fraternal Order of Police, Fort Pitt Lodge No. 1.

6. The Confidence in Law Enforcement Act [Act of
January 29, 2004, P.L. 4, No. 2, 53 P.S. §752.4] provides
for suspension from employment of a law enforcement
officer pending disposition of criminal charges that
would prohibit employment as a law enforcement officer
and this Act provides for termination if an individual is
convicted of criminal charges that would prohibit
employment as a law enforcement officer.

7. The employer has a use of force policy providing that
an officer “shall only use that level of control which
he/she might reasonably believe is necessary to affect an
arrest or to protect the officer(s) or others from physical
harm.”

8. The employer has a Continuum of Control Policy
providing that an officer may utilize a control option one
level higher than the resistance demonstrated by a
subject.


                            4
(R. Item 16, Board’s Order; R. Item 12, F.F. ¶¶ 2-8.) With regard to the events that
transpired during the incident at Heinz Field, the Board found that Claimant
initially informed the actor that he was no longer permitted entrance due to his
impaired state and was required to leave, at which time the actor began to walk
away but then turned and debated the issue, stating that his friends were inside and
they held the keys to the actor’s truck. (R. Item 16; R. Item 12, F.F. ¶¶ 11-13.)
The actor was approximately four feet in distance from Claimant, with his arms by
his sides and both hands in the side pockets of his pants, with his right thumb out
of his right side pocket; Claimant told the actor “I’m going to put my foot up
you’re a** if you don’t leave and you can taste my shoelaces.” (R. Item 12, F.F.
¶¶ 14-15.) Claimant did not inform the actor that he was under arrest, and although
he passively resisted Claimant’s repeated instruction to leave, the actor maintained
a relaxed and non-aggressive body posture. (Id., F.F. ¶¶ 20-21.) Claimant then
took a few steps toward the actor and abruptly shoved him to the hard cement
ground with the force of his open palms against the actor’s chest; the actor fell
backwards on his back, and then attempted to get up from the ground as he
exclaimed, “what the f**k?” (Id., F.F. ¶¶ 22-23.) Claimant again pushed the actor
back to the ground; the actor again attempted to get up but Claimant knocked him
back a third time, with a right cross, closed-fist punch to the actor’s face; the actor
continued his attempt to get up off the ground and tried to protect himself as
Claimant continued to punch the actor with his fists. (Id., F.F. ¶¶ 24-26.) The
actor then managed to get up off the ground but Claimant immediately tackled him
and took him back to the ground as he continued to attack the actor with his fists;
the actor was ultimately subdued and handcuffed, as three of the security guards
assisted Claimant in restraining him. (Id., F.F. ¶¶ 27-28.)


                                          5
              Claimant filed charges against the actor including criminal trespass,
public drunkenness, aggravated assault, and underage purchase, consumption,
possession and transportation of liquor.3 (R. Item 12, F.F. ¶ 30.) In his narrative
of the incident, Claimant asserted that the actor “stepped his leg back and bladed
his body slightly and appeared to have clinched his right fist clinched, and then
rocked onto the balls of his feet from his heels” and further stated “I immediately
recognized this as a premature sign of an individual becoming prepared to take an
aggressive attacking position.” (Id., F.F. ¶ 31; R. Item 3, Employer Separation
Information, Claimant’s Investigative Report.) Claimant’s narrative, as set forth in
his investigative report, further states:

              Believing that [the actor] was going to attempt to assault
              me, I pushed him backwards to create a reactionary gap
              between us. [The actor] fell backwards and began to get
              up quickly and he stated, “what the f**k?” I pushed [the
              actor] back and stated, “don’t do it.” [The actor] then
              lunged towards me and I delivered a right cross closed
              fisted punch to his face, knocking him to the ground, to
              which he came back toward me and I then followed with
              approximately four palm heel strikes to his torso and
              face. [The actor] then punched me in my chest and
              grabbed my jacket. I then struck [the actor’s] hand in
              attempt to free my coat from his grasp by striking his grip
              approximately six times with a closed fist.

(R. Item 3, Employer Separation Information, Investigative Report.)
              With regard to the investigation conducted by Employer and
subsequent action taken, the Board found that:


3
  At the second hearing, Lt. Joseph testified that he had been told by the District Attorney’s
office that the aggravated assault charge against the actor had been withdrawn. (R. Item 11, H.T.
at 44.)
                                               6
32. After receiving surveillance video of the above
incident from Heinz Field, the employer began an
internal investigation and also referred the incident to the
City’s Office of Municipal Investigations.

33. The internal investigation was conducted by the
employer’s Lieutenant of Major Crimes.

34. The employer placed the claimant on paid
administrative leave beginning December 3, 2015.

35. The employer’s Lieutenant of Major Crimes
determined that the claimant assaulted the actor on
November 28, 2015 and that the claimant falsified his
narrative.

36. On January 15, 2016, a disciplinary report was filed
against the claimant charging the claimant with violating
Bureau of Police Rules and Regulations including
Standards of Conduct and Use of Force.

37. The claimant was determined by the employer to
have violated the employer’s Standards of Conduct
policy including obedience to orders and/or laws,
conduct unbecoming a member of the Pittsburgh Police
Department, and truthfulness.

38. The Lieutenant of Major Crimes filed charges
against the claimant including Simple Assault and
Official Oppression.

39. On February 1, 2016, the criminal case against the
claimant was dismissed at a preliminary criminal trial.

40. The claimant was scheduled for an interview with
OMI on February 2, 2016 but declined participation on
the advice of his attorney.

41.    On February 8, 2016, the Chief of Police
recommended a five-day suspension pending termination
and the claimant appealed.


                             7
             42. On February 26, 2016, criminal charges were refiled
             with the addition of a charge of perjury.

             43. On March 1, 2016, the employer discharged the
             claimant for violation of Bureau of Police Rules and
             Regulations including Standards of Conduct and Use of
             Force.
(R. Item 12, F.F. ¶¶ 32-43.) Employer’s Police Discipline Procedure mandates that
all disciplinary action is initiated through the preparation and filing of a
Disciplinary Action Report (DAR); within ten days after the report is signed by the
Police Chief, a meeting must be held between the Police Chief, the police officer,
the Fraternal Order of Police representative, and the Director of Public Safety, and
the police officer is afforded the opportunity to respond to the charges against him
or her. (R. Item 11, Exhibit, Police Discipline Procedure.)
             The Board adopted the Referee’s conclusion that Employer had
provided credible testimony and evidence to demonstrate Claimant’s violation of
Employer’s Standards of Conduct policy, Use of Force policy, and Continuum of
Control policy.   As stated by the Referee and incorporated into the Board’s
decision, “[t]he video evidence clearly demonstrates that [C]laimant engaged in
assault and excessive force against an actor engaged in passive resistance to
[C]laimant’s instructions to leave the premises.”       (R. Item 12, Reasoning.)
Claimant’s testimony was found not credible and “belied by both the video
evidence and [C]laimant’s own admissions that the actor’s arms remained at his
side and his hands in his pockets.” (Id.)
             Before this Court, Claimant contends that: (1) the Board lacked
substantial evidence to support a finding of willful misconduct; (2) the Board
should have determined that Claimant’s due process rights were violated by the
manner in which Employer conducted its investigation; (3) the Board failed to

                                            8
allow Claimant to present evidence of similarly situated individuals and its past
practices of placing employees on paid administrative leave until criminal charges
were resolved; and (4) the Board erred in failing to find that Employer violated the
Confidence in Law Enforcement Act when it terminated Claimant prior to the
resolution of the criminal charges against him.
             The question of whether an employee’s actions constitute “willful
misconduct” is a question of law subject to this Court’s review. Rossi v.
Unemployment Compensation Board of Review, 676 A.2d 194, 197 (Pa. 1996).
Willful misconduct is defined as: (i) wanton or willful disregard for an employer’s
interests; (ii) deliberate violation of an employer’s rules; (iii) disregard for
standards of behavior which an employer can rightfully expect of an employee; or
(iv) negligence indicating an intentional disregard of the employer’s interest or an
employee’s duties or obligations.            Caterpillar, Inc. v. Unemployment
Compensation Board of Review, 703 A.2d 452, 456 (Pa. 1997).               It is the
employer’s burden to demonstrate that an employee has engaged in willful
misconduct; however, even if an employer has met its burden, an employee can
prove that the actions were justifiable and reasonable under the circumstances such
that the employee had good cause and the actions will not be considered willful
misconduct. Rossi, 676 A.2d at 197.
             At the second hearing, the Director of Public Safety testified that
during a meeting he held with Claimant on February 16, 2016, he and Claimant
viewed the twenty minute surveillance video together, going over it frame by
frame. (R. Item 11, H.T. at 3-4.) He testified as to what he observed on the video,
and the inconsistencies he felt existed between what he had observed and the
manner in which Claimant described the incident in his written arrest report.


                                         9
              Lt. Joseph, who was charged with investigating the incident and
completing the DAR, testified that in addition to viewing the video, he read
Claimant’s police report and affidavit of probable cause, interviewed nine security
guard witnesses who observed the incident at Heinz Field, and offered the video to
the Police Bureau’s Use of Force expert for viewing and the submission of a
report. (Id., H.T. at 35-36.) In his DAR, Lt. Joseph noted that the Use of Force
expert’s opinion was that Claimant’s use of force was not a “reasonable” use of
force and was in fact “excessive” force.          (R. Item 3, Employer Separation
Information, Disciplinary Action Report.) Before the Referee, Lt. Joseph was
asked to describe the areas he observed in the video that did not match Claimant’s
depiction of events as set forth in his written arrest report. He testified that he did
not see a right fist being clenched, he did not see the actor rock onto the balls of his
feet from his heels and he saw no aggravated assault on the part of the actor; he
stated that there was nothing in the video to have caused Claimant to close the gap
between the actor and himself or to take the action that he took. (R. Item 11, H.T.
at 38-40.) In his DAR report, Lt. Joseph notes that the video of the incident “is not
congruent with [Claimant’s] report and affidavit. The video does not depict [the
actor] at any time in an aggressive, threatening or fighting stance. [The actor] does
not appear to be combative or resist arrest.” (R. Item 3, Disciplinary Action
Report.) Lt. Joseph further notes that numerous eyewitnesses were interviewed,
and none heard the actor making any verbal threats, nor did they see the actor take
any type of “fighting stance.” (Id.) The DAR sets forth the Employer’s Standards
of Conduct policies and procedures which Claimant was charged with violating,
including: 3.1-Obedience to Orders and/or Laws; 3.6-Conduct Unbecoming a
Member or Employee; 3.19- Truthfulness; and from the Bureau of Police Use of


                                          10
Force policies and procedures, 3.0-Use of Force. (Id., Pittsburgh Bureau of Police
Standards of Conduct Policy, Use of Force Policy.)
              Master Police Officer Swartzwelder, an instructor on use of force
tactics, testified on behalf of Claimant. Swartzwelder, who reviewed the video,
stated that Claimant’s actions were reasonable based on the totality of the
circumstances he faced during the incident, and that Claimant used both soft empty
hand and hard empty hand techniques as outlined by and in accordance with City
of Pittsburgh policies on use of force and continuum of control. (Id., H.T. at 106,
108.)
              Fraternal Order of Police attorney Campbell also testified on
Claimant’s behalf, describing the process by which citizen complaints of police
misconduct and possible civil rights violations are investigated by the Office of
Municipal Investigations (OMI).      (R. Item 11, H.T. at 115-119.)       Campbell
discussed the 1997 Consent Decree, pursuant to which the City of Pittsburgh
agreed to develop and implement a use of force policy and granted final authority
and responsibility for determining the disposition of a citizen complaint with OMI.
(Id.; Exhibit C2, Consent Decree.)       Campbell asserted that Employer was
prohibited from conducting an internal investigation of the incident and from
terminating Claimant’s employment prior to the conclusion of OMI’s
investigation. (Id., H.T. at 125, 136.) Campbell further testified as to the actions
the Bureau of Police is required to take under the Confidence in Law Enforcement
Act when a police officer is charged with an offense, indicating that an officer
must be suspended, but cannot be terminated from his employment unless and until
he or she is convicted of criminal charges. (Id., H.T. at 132-134.) However, on
questioning by the Referee, Campbell allowed that the Confidence in Law


                                        11
Enforcement Act does not prohibit the police department from terminating an
officer’s employment for violation of its policies and procedures; that no one at the
police department ever indicated to Campbell that Claimant’s employment was
terminated as a result of criminal charges being filed against him; and that the actor
has never filed a complaint with OMI. (Id., H.T. at 133, 135-136.)
             Here, there is substantial evidence establishing that Claimant
committed willful misconduct by violating Employer’s policies and procedures.
Claimant’s testimony as to justification for his use of force was found not credible,
and the Board found further that his testimony was belied by both the video
evidence and his own admissions as to where and how the actor held his arms. (R.
Item 16, Board’s Order.) Moreover, there is simply no evidence that Employer
was precluded by the establishment of OMI, and the citizen complaint process that
it implements from conducting its own internal investigation of the incident and
determining whether or not Claimant violated its policies and procedures. As the
Board noted, “[E]mployer’s preemptive disciplinary action in this case appears
congruent with the fundamental intent of establishing OMI as a means to protect
the citizenry against police misconduct and abuse of power.” (Id.) We also reject
Claimant’s argument that Employer was prohibited from discharging Claimant
prior to disposition of the criminal charges filed, dismissed, and re-filed against
him; Employer established, and Claimant’s witness corroborated the fact that
Claimant was not discharged from his employment because of pending criminal
charges but rather for violation of Employer’s policies and procedures. Finally,
Claimant’s argument that Board failed to allow Claimant to present evidence of
similarly situated individuals and past practices of placing employees on paid
administrative leave until criminal charges were resolved fails because it is


                                         12
unsupported by the record. Over Employer’s objection, the Referee permitted
Claimant to offer such evidence, but Claimant failed to do so. (R. Item 11, H.T. at
28.)
              We find no error in the Board’s affirmance of the Referee’s
determination that Claimant’s actions demonstrated a violation of Employer’s
policies and procedures and a willful disregard of Employer’s interest rising to the
level of willful misconduct. Accordingly, the order of the Board is affirmed.




                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                        13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Stephen Matakovich,                 :
                                    :
                 Petitioner         :
                                    :
           v.                       : No. 1298 C.D. 2016
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                 Respondent         :



                               ORDER


           AND NOW this 29th day of March, 2017, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
AFFIRMED.




                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
