                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dale Harbel,                               :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 438 C.D. 2017
                    Respondent             :   Argued: December 4, 2017


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: December 27, 2017

               Dale Harbel (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) March 17, 2017
order affirming the Referee’s decision denying Claimant UC benefits under Section
402(e) of the UC Law (Law).1 Claimant presents two issues for this Court’s review:
(1) whether the UCBR’s decision is supported by substantial evidence; and (2)
whether the UCBR erred as a matter of law by determining that Claimant committed
willful misconduct. After review, we affirm.
               Claimant was last employed by C & T Machining (Employer) as a full-
time sales engineer earning a $37,000.00 annual base salary from June 16, 2003,
through his last day of work on March 31, 2016. On March 30, 2016, Employer’s
General Manager Rick Twine (Twine) informed Claimant that he would not be
receiving his yearly bonus because Claimant had not provided requested inventory

      1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
information.     Before leaving for the day, Claimant threw a packet of inventory
information on Twine’s desk which included Claimant’s handwritten notations on
current inventory. On March 31, 2016, Twine again informed Claimant that he
would not be receiving his yearly bonus due to the inventory discrepancies. Claimant
told Twine that he would get his bonus one way or another, and left Twine’s office.
Claimant later returned to Twine’s office and asked Twine to lay him off because he
was not quitting. Twine told Claimant that he would not lay him off, and Claimant
left the office again. Claimant returned to Twine’s office a few minutes later and
informed Twine that he would sit at his desk or stay at home and not perform his job
duties. Claimant left Twine’s office. Twine followed Claimant and told Claimant
that effective immediately, he was no longer employed.                    Employer discharged
Claimant for his insubordinate language on March 31, 2016.
               Claimant applied for UC benefits.              On September 23, 2016, the
Allentown UC Service Center determined that Claimant was not eligible for UC
benefits pursuant to Section 402(e) of the Law. Claimant appealed and a Referee
hearing was held.       On October 27, 2016, the Referee affirmed the UC Service
Center’s determination. Claimant appealed to the UCBR. On March 17, 2017, the
UCBR adopted and incorporated the Referee’s findings and conclusions and affirmed
the Referee’s decision. Claimant appealed to this Court.2
               Initially,

               Section 402(e) of the Law provides that an employee is
               ineligible for [UC] benefits when his unemployment is due

       2
         “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).




                                                 2
              to discharge from work for willful misconduct connected to
              his work. The employer bears the burden of proving willful
              misconduct in a[] [UC] case. Willful misconduct has been
              defined as (1) an act of wanton or willful disregard of the
              employer’s interest; (2) a deliberate violation of the
              employer’s rules; (3) a disregard of standards of behavior
              which the employer has a right to expect of an employee; or
              (4) negligence indicating an intentional disregard of the
              employer’s interest or a disregard of the employee’s duties
              and obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted). “If the employer satisfies its burden, the burden
shifts to the employee to show that he . . . had good cause for his . . . conduct. ‘A
claimant has good cause if his . . . actions are justifiable and reasonable under the
circumstances.’” Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55
A.3d 186, 190 (Pa. Cmwlth. 2012) (citation omitted) (quoting Docherty v.
Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)).
              Claimant first argues that the UCBR’s decision is not supported by
substantial evidence. The law is well-established:

              [T]he [UCBR] is the ultimate fact-finder in [UC] matters
              and is empowered to resolve all conflicts in evidence,
              witness credibility, and weight accorded the evidence.[3] It
              is irrelevant whether the record contains evidence to
              support findings other than those made by the fact-
              finder; the critical inquiry is whether there is evidence to
              support the findings actually made. Where substantial
              evidence supports the [UCBR’s] findings, they are
              conclusive on appeal.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted; emphasis added). This Court has explained:

              Substantial evidence is relevant evidence upon which a
              reasonable mind could base a conclusion. In deciding

       3
          Here, the Referee expressly stated: “The Referee resolves any conflicts in testimony in
favor of [] Employer.” Referee Dec. at 2.
                                               3
              whether there is substantial evidence to support the
              [UCBR’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 which can
              logically and reasonably be drawn from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
              Here, Twine testified:
              E[mployer’s] L[awyer] Okay. Then tell us what occurred
              between you and [Claimant] on the 30th.
              E[mployer’s] W[itness] On the 30th I mentioned to
              [Claimant] that he wasn’t receiving his bonus because I
              hadn’t received information that I had been requesting from
              him, which would have allowed us to basically get to the
              bottom of the tens of thousands of dollars of missing
              inventory.[4] He was upset obviously. By the end of the
              day [Claimant] came to my office and threw down on
              my desk what is now considered inventory counts, the
              paper that’s inventory counts [Service Center Ex. 17
              Inventory Counts]. These are the papers that [Claimant]
              delivered to me on March the 30th in the afternoon before
              the end of the day.
              ....
              EL What happened next?
              EW Well basically what happened was after he put these
              things in front of me I got – of course we came to the end of
              the day. The next day came around and I had done some, I
              had done some [sic] research, looked at these numbers and I
              mean there was no – basically looking at this list, I mean
              you can see there are no numbers provided for many of
              these items on this list. And I had already done some
              preliminary work on this inventory count reconciliation
       4
          Twine explained: “[Employer] was trying to get to the bottom of the inventory issue at
[the] facility; why [Employer was] carrying what appeared to be an exorbitant amount of inventory
for certain items, and negative inventory for other items in [Employer’s] – [Employer’s] [sic]
computer system.” Notes of Testimony, October 26, 2016 at 11. Twine expounded that he
“attempt[ed] to get [] Claimant to give [him] counts, actual inventory counts of products that [he]
had questions about, that appeared to be missing from [Employer’s] inventory levels.” Id.
                                                4
            sheet. I had plugged these numbers into it, and basically the
            next day [Claimant] and I had another meeting.
            EL That would be March 31st?
            EW March 31st.
            EL What occurred?
            EW I pretty much told [] Claimant the next day that he
            would not be receiving a bonus for that year. I mean
            based on the lack of cooperation, the missing inventory, the
            expense to the company for the missing inventory, and he at
            [that] point said he would get his bonus one way or another.
            EL What occurred next?
            EW He stormed out of my office at that point. A little bit
            later he came back to my office and he looked at me and he
            said why don’t you just lay me off, and I said I am not
            going to lay you off. He said well I’m not going to quit. So
            he left my office again and a little bit later he came back in
            and the next conversation was he came back in my office
            [sic] and said that anybody can be responsible for taking his
            inventory. He blamed it on other salesmen; he blamed it on
            the sales manager and other salesmen taking his inventory
            out of the warehouse area; he blamed it on the gal who does
            the invoicing for sabotaging the invoices because she didn’t
            like him. And I pretty much told him that, you know, the
            inventory tracking process was his responsibility, and that
            he was not going to be pushing that responsibility off on
            anybody else. It was his responsibility. Nobody else was
            responsible, and he would not be paid his bonus. At that
            point in time he said I will sit at my desk or I will stay
            home and not perform my duties, and he stormed out of
            my office and went into the warehouse.

Notes of Testimony, October 26, 2016 (N.T.) at 13-15 (emphasis added). Twine
recounted that thereafter he “followed [Claimant] out into the warehouse and [] told
him effective immediately he was no longer employed with [Employer].” N.T. at 15.
Clearly, refusing to perform one’s assigned employment duties is acting beneath the
standards of behavior an employer has the right to expect of an employee.

                                          5
Accordingly, examining the testimony in the light most favorable to Employer, as we
must, and giving Employer the benefit of any inferences which can logically and
reasonably be drawn from the evidence, substantial evidence supports the UCBR’s
decision.
            Claimant next argues that the UCBR erred as a matter of law by
determining that Claimant committed willful misconduct for stating that he refused to
work. Specifically, Claimant contends that he made the statement in the heat of the
moment and therefore it does not rise to the level of willful misconduct. Ultimately,
“[t]he question of whether conduct rises to the level of willful misconduct is a
question of law to be determined by this Court.” Scott v. Unemployment Comp. Bd.
of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).
            Our Supreme Court has explained:
            The rationale upon which this concept of good cause was
            developed was that where the action of the employee is
            justifiable or reasonable under the circumstances it
            can[]not be considered wil[l]ful misconduct since it
            can[]not properly be charged as a wil[l]ful disregard of the
            employer’s intents or rules or the standard of conduct the
            employer has a right to expect.

Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631, 634 (Pa. 1976)
(emphasis added).
            Although Claimant asserts that his statement was made “in the heat of
the moment” upon being told he would not get his bonus, Claimant Br. at 10,
Claimant was advised he would not receive a bonus the day before he made said
statement. See Referee Dec. at 1; Finding of Fact (FOF) 2, 3. While Claimant’s
behavior after initially being informed he would not receive his bonus, i.e., throwing
his inventory reports on Twine’s desk before leaving for the day, may not have risen
to willful misconduct, Claimant’s refusal to work after being told again the next day
was not “justifiable or reasonable under the circumstances[.]” Frumento, 351 A.2d at
                                          6
634; see also Jones v. Unemployment Comp. Bd. of Review, 373 A.2d 791, 792 (Pa.
Cmwlth. 1977) (“The subsequent refusal . . . after a ‘cooling-off period’ . . . was
neither reasonable nor justifiable.”). This conclusion is especially true here where
Claimant not only refused to work, but also, prior thereto asked to be laid off and told
Twine he would not quit.        Accordingly, the UCBR properly determined that
Claimant’s refusal to perform his employment duties was willful misconduct.
             Claimant argues in the alternative that
             this case should be reviewed as [a] voluntary quit case. To
             this end, the alleged statement that [Claimant] would not
             perform any work, if believed, could be viewed as a
             constructive quit. As [Claimant] had a necessitous and
             compelling reason to quit his employment, he is eligible for
             benefits under the [Law].

Claimant Br. at 12. We disagree. “Whether a claimant was discharged is a question
of law, the resolution of which is dependent on the facts found by the [UCBR].”
Beverly Enters., Inc. v. Unemployment Comp. Bd. of Review, 702 A.2d 1148, 1151
(Pa. Cmwlth. 1997).
            Here, the Referee opined that “Claimant specifically denied that he
resigned.” Referee Dec. at 2. Claimant’s testimony supports this conclusion. First,
when asked whether he was “discharged,” or he “quit,” or if there was “some other
reason” for his separation, Claimant responded: “I was fired.” N.T. at 7. Further,
Claimant testified that he expressly told Twine: “I’m not going to quit[.]” N.T. at 27.
Accordingly, the case was properly reviewed under Section 402(e) of the Law, i.e.,
willful misconduct.
             For all of the above reasons, the UCBR’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge



                                           7
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dale Harbel,                            :
                         Petitioner     :
                    v.                  :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 438 C.D. 2017
                    Respondent          :




                                      ORDER

               AND NOW, this 27th day of December, 2017, the Unemployment
Compensation Board of Review’s March 17, 2017 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
