         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mascari Auto Body, Inc.,                      :
                 Petitioner                   :
                                              :
              v.                              : No. 691 C.D. 2015
                                              : Submitted: November 20, 2015
Unemployment Compensation Board               :
of Review,                                    :
               Respondent                     :


BEFORE:       HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                           FILED: February 8, 2016


              Mascari Auto Body, Inc. (Employer) petitions for review of the April
1, 2015 order of the Unemployment Compensation Board of Review (Board)
concluding that Robert E. Sozanski (Claimant) was not ineligible for
unemployment compensation under Section 402(e) of the Unemployment
Compensation Law1 (Law). We affirm.
              Claimant was employed as a full-time auto mechanic from December
2011 until May 19, 2014. (Record (R.) Item 17, Board’s Decision and Order,
Finding of Fact (F.F.) ¶1.)         In his initial internet claim for unemployment
compensation, Claimant listed as the reason that he was discharged from

1
  Act of December 5, 1936, Second. Ex. Sess., P.L. (1937) 2897, §402(e), as amended, 43 P.S.
§802(e). Section 402(e) provides 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….” 43 P.S. §802(e).
employment his unsatisfactory performance, and reported that he was not warned
about his work performance and that his unsatisfactory work performance was due
to a knee injury for which he was taking pain medications. (R. Item 2, Initial
Internet Claims.) Employer submitted separation information to the Department of
Labor and Industry (Department) in the form of an oral interview indicating that
Claimant “was causing too much damage, his work performance really plummeted.
It was a mutual agreement to part ways.” (R. Item 3, Record of Oral Interview.)
Employer’s Notice of Application states that Claimant was discharged from his
employment due to “unsatisfactory work performance” and further states that
“[Claimant] was given written examples of repairs made to customers’ cars that
were completed improperly.” (R. Item 4, Employer’s Notice of Application.)
            On June 18, 2014, the Department issued a Notice of Determination
finding Claimant not ineligible for benefits under Section 402(e) of the Law,
because Claimant had worked to the best of his ability. (R. Item 5, Notice of
Determination.) Employer appealed, and on September 2, 2014, a hearing was
held before the Referee at which only Claimant testified. (R. Item 10, 9/2/14
Hearing Transcript.) The Referee dismissed Employer’s appeal as untimely under
Section 501(e) of the Law, 43 P.S. § 521(e) and Employer appealed that decision;
the Board ordered a remand hearing at which Claimant testified, together with
Employer’s owner (Owner) and Employer’s controller.        (R. Item 10, 11/4/14
Hearing Transcript (H.T.).) Following the remand hearing, the Board issued an
April 1, 2015 decision in which it determined that Employer had established a
timely appeal via fax transmission and established proper cause for nonappearance
at the initial September 2, 2014 hearing but ultimately affirmed the Notice of
Determination finding Claimant not ineligible for benefits. (R. Item 17, Board’s


                                       2
Decision and Order.) In its decision, the Board made the following relevant
findings of fact:

             2. The claimant had previously informed one of the
             employer’s management staff, Gina Novick, that he was
             seeing an orthopedic surgeon for knee pain and was
             taking a prescribed mild pain reliever.

             3. The owner discovered that two vehicles required
             additional repairs after the claimant had worked on them;
             one vehicle required an additional $173 in repairs, and
             the other vehicle required an additional $540.08 in
             repairs.

             4. The claimant had not received any prior verbal or
             written warnings about these repair issues.

             5.    Sometime around May 19, 2014, the owner
             discovered that the claimant caused approximately $600
             in damages to the wheel of another vehicle.

             6. Gina Novick informed the claimant that he was being
             discharged, and, if he did not sign the Step-By-Step
             Employee Warning Report, the employer would require
             him to pay for the parts to repair the damaged vehicles.

             7.    On May 20, 2014, the claimant signed an
             acknowledgement indicating that he received the Step-
             By-Step Warning Report and was being discharged for
             substandard work quality.

             8. At the time that the claimant was discharged, he told
             Ms. Novick that he possibly damaged the vehicles
             because he was under the influence of mild sedative pain
             medication for his knee injury.

(R. Item 17, Board’s Decision and Order, F.F. ¶¶2-8.) The Board reasoned that,




                                        3
              Here, the parties offered conflicting testimony as to the
              timing and receipt of final disciplinary action(s) and
              other related issues. The Board resolves the relevant
              conflicts in testimony in favor of the claimant, who
              specifically testified that he did not receive any prior
              verbal or written warnings about damage to customer
              vehicles or other work performance issues before his last
              day of work on May 19, 2014. The claimant signed the
              Step-By-Step Employee Warning Report on May 20,
              2014. At that time, the employer informed the claimant
              that he was being discharged, and, if he did not sign the
              Step-By-Step Warning Report, the employer would
              require him to pay for the parts to repair the three
              damaged vehicles.

(Id., Discussion.) The Board concluded that Employer failed to offer sufficient
testimony or other evidence to establish that Claimant allowed his work
performance to deteriorate through carelessness or negligence, and that Claimant’s
behavior during the final incidents leading to his discharge from employment did
not qualify as willful misconduct. (Id.) Employer appealed the Board’s decision.2
              Before this Court, Employer argues essentially that the Board erred in
finding that Employer failed to meet its burden of proving that Claimant was
discharged from employment due to willful misconduct; Employer asserts that
contrary to the Board’s finding, Employer warned Claimant of damages he caused
to certain vehicles before the final incident that resulted in his termination.3

2
  In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
and whether necessary findings of fact are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2. Pa.C.S. §704; On Line Inc. v. Unemployment Compensation
Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008). Substantial evidence is defined as
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 647 n.4 (Pa. Cmwlth.
2012).
3
  We reject Employer’s other argument, that Claimant was discharged for violation of an
Employer policy regarding the proper care of vehicles and its employees’ duty to ensure that
                                               4
               Pennsylvania courts have defined willful misconduct as: (i) the
wanton and willful disregard of an employer’s interests; (ii) deliberate violation of
rules; (iii) disregard of the standards of behavior which an employer can rightfully
expect from an employee; or, (iv) negligence showing an intentional disregard of
the employer’s interests or the employee’s duties and obligations.                      Grieb v.
Unemployment Compensation Board of Review, 827 A.2d 422 (Pa. 2002); Johns v.
Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014).
The employer bears the burden of establishing a claimant engaged in willful
misconduct. Id.
               Employer cites Cullison v. Unemployment Compensation Board of
Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982), and Scott v. Unemployment
Compensation Board of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012), in support
of its position that Claimant has demonstrated a conscious indifference to
Employer’s interest sufficient to establish willful misconduct. In Cullison, we
stated that mere incompetence, inexperience or inability might justify a discharge
from employment, but does not constitute willful misconduct; only where the
record shows that notwithstanding his ability to perform, an employee’s work
performance progressively worsens and his actions are careless, can an intentional
and substantial disregard of the employer’s interests and a disregard of the


vehicles under repair not be further damaged, and Employer’s contention that Claimant failed to
meet his burden to show that he had good cause to violate this policy. Where a claimant has
been discharged for a rule violation, the employer has the burden to show the existence of a
reasonable work rule, and that the claimant violated the rule; once the employer establishes those
elements, the burden shifts to the claimant to show that he had good cause to violate the rule.
Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814
A.2d 1286 (Pa. Cmwlth. 2003). Here, Employer did not submit any evidence to the Board
regarding any specific policy that Claimant is alleged to have violated or any specific instruction
that Claimant is alleged to have disregarded.
                                                5
employee’s duties and obligations be demonstrated. 444 A.2d at 1332. In Scott,
we applied a similar rationale and affirmed the Board’s denial of benefits where
the claimant’s continued poor work performance demonstrated an intentional
disregard of the employer’s interests and of the claimant’s duties and obligations.
36 A.3d at 647-648. However, both cases involved employees who received
multiple warnings over extended periods of time that their work performance was
unsatisfactory. Scott involved an experienced hospital technician charged with
cleaning instruments used in surgical procedures who had repeatedly been warned
in writing about dirty instrument trays, had been previously placed on
administrative leave for violations of hospital policy and on another occasion, had
been suspended for policy infractions. In Cullison, the claimant was a lift truck
operator who had received multiple warnings about his work performance,
particularly over the last three months of his employment.
             The record demonstrates that Employer issued just one warning, titled
a ‘Step-By-Step Employee Warning Report,’ to Claimant regarding his
substandard work quality, on May 19, 2015, and that May 19, 2015 was Claimant’s
last day of work. (R. Item 16, Remand Hearing, Exhibit; Transcript of Testimony
(H.T.) at 7.)   The warning clearly indicates that the action being taken is
“dismissal.” (R. Item 16, Exhibit.) Attached to the warning is a sticker indicating
the names of three individual clients of Employer, presumably those clients whose
vehicles were damaged by Claimant during the repair process. (Id.) Contrary to
Owner’s testimony that Claimant was given the opportunity on May 19, 2015 to
remain in his employment so long as he paid for the damages to two of the
vehicles, Claimant testified repeatedly that he was told that he would be dismissed,



                                         6
whether or not he signed the Step-By-Step Warning Report.4 (R. Item 16, H.T. at
9.) The Board credited Claimant’s testimony that he had received no warnings,
verbal or written, about his work performance prior to his last day of employment.
              Our Courts have made clear that the Board is the ultimate fact finder
and is empowered to resolve conflicts in the evidence and to determine the
credibility of witnesses. The Board’s findings are conclusive and binding on
appeal if the record, when examined as a whole, contains substantial evidence to
support those findings, even if there is other contrary evidence.                     Bruce v.
Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth.
2010). Substantial evidence supports the Board’s findings that Claimant received
no prior verbal or written warnings about damage to customer vehicles or other
work performance issues before his last day of work and that Employer failed to
offer sufficient testimony or other evidence that Claimant allowed his work
performance to deteriorate through carelessness or negligence; accordingly, we
discern no error in the Board’s determination that Employer failed to sustain its
burden of proving that it discharged Claimant from his employment as a result of
actions that constitute willful misconduct. The Board’s order is affirmed.



                                           _____________________________________
                                          JAMES GARDNER COLINS, Senior Judge




4
  Claimant testified that he was informed by Owner’s daughter that if he did not sign the warning
report he would be dismissed and held responsible for the cost of parts for three damaged
vehicles, and if he did sign the warning report, he would also be dismissed, but not held
responsible for the costs of the parts involved. (R. Item 16, H.T. at 9.)
                                               7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Mascari Auto Body, Inc.,            :
                 Petitioner         :
                                    :
           v.                       : No. 691 C.D. 2015
                                    :
Unemployment Compensation Board     :
of Review,                          :
               Respondent           :




                               ORDER

           AND NOW, this 8th day of February, 2016, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
AFFIRMED.



                                 _____________________________________
                                JAMES GARDNER COLINS, Senior Judge
