          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Foreman,                        :
                         Petitioner     :
                                        :
            v.                          :   No. 1025 C.D. 2017
                                        :   Submitted: June 22, 2018
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: August 22, 2018


            Claimant William J. Foreman (Claimant) petitions pro se for review of
an order of the Unemployment Compensation Board of Review (Board). The Board
affirmed a Referee’s determination that Claimant was ineligible for benefits under
Section 402(e) of the Unemployment Compensation Law (Law),1 relating to willful
misconduct. For the reasons set forth below, we now affirm the Board’s order.
            Berkheimers Construction (Employer) employed Claimant as a
construction worker.    He worked for Employer from April 2015 through
February 13, 2017. On February 13, 2017, Claimant’s employment ended after he


      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e).
did not report for work on time, despite receiving a final warning regarding his
attendance. Claimant subsequently filed for unemployment compensation benefits.
            On February 21, 2017, the Erie UC Service Center (Service Center)
determined that Claimant was ineligible for unemployment compensation benefits
under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) The Service
Center determined that Claimant had been warned about his attendance, Claimant
did not report to work on time, and Claimant did not show good cause for the
tardiness. (Id.) Claimant appealed the Service Center’s determination. (C.R., Item
No. 5.)
            On March 24, 2017, a Referee conducted a hearing. (C.R., Item No. 9.)
During the hearing, Claimant testified to the circumstances surrounding his
separation from employment.      Both James Berkheimer (Owner), Employer’s
part-owner, and Melody Berkheimer, Employer’s part-owner and secretary,
appeared on behalf of Employer. (Id. at 1-2.)
            At the hearing, Claimant sought to establish that he had not engaged in
willful misconduct and that Employer had not given Claimant a warning regarding
his attendance. Claimant stated that Owner usually contacted him on Sunday or
early Monday to notify him where to report for work, giving Claimant enough time
to report as expected. (Id. at 21.) Claimant testified that on January 30, 2017, he
did not, however, receive instructions from Owner as to where he was to report for
work that day. (Id.) Claimant explained that he texted Owner, questioning him as
to why he did not receive notice of where to report to work. (Id. at 23.) Claimant
testified that Owner explained to him that workers are responsible to contact Owner
to learn when and where they are to report.       (Id.)   Claimant stated that on
February 13, 2017, he slept through his alarm, and when he informed Owner, Owner


                                        2
told him to report directly to the worksite. (Id. at 26.) Claimant stated that he started
driving, but he did not know the exact location of the worksite. (Id. at 26.) Claimant
testified that he texted Owner that he would call him after he started driving so
Claimant could receive directions to the exact location of the worksite. (Id.) By the
time he was able to contact Owner to receive the directions, Owner told him, “Never
mind.” (Id. at 27.)
              Owner testified that on December 27, 2016, Claimant’s start time
was 7:00 a.m. (Id. at 10.) Owner stated that around 8:00 a.m., he texted Claimant
to find out where he was and to inform him that this was his final warning regarding
attendance. (Id. at 9-10.) Owner stated that Claimant did not respond to his text.
(Id. at 11.) Owner stated that weeks later, he and Claimant exchanged texts
regarding the December 27, 2016 incident, in which Claimant explained that it takes
him at least thirty minutes to drive from his house to report for work. (Id. at 14-15.)
Owner testified that on February 12, 2017, Owner texted Claimant, providing the
location of the worksite and advising him to report to work the next day at 6:45 a.m.
at Owner’s house, to which Claimant replied, “Okay.” (Id. at 14.) Owner stated
that, on the morning of February 13, 2017, at 6:51 a.m., Claimant texted Owner that
he had just woken up and “would be on the road in a minute.” (Id.) Owner then
texted Claimant to report directly to the worksite. (Id.) Owner testified further that
by 8:47 a.m., Claimant had not reported nor contacted Owner. (Id.) Owner stated
that he texted Claimant, “Never mind. Will mail your last check. Not going to keep
allowing this to go on. Will send termination letter with check.”2 (Id.)

       2
          Melody Berkheimer also testified on behalf of Employer. (C.R., Item No. 9 at 30.)
Melody Berkheimer testified that upon commencement of his employment, Claimant read and
signed a policy agreement, listing conditions of employment. (Id.) Melody Berkheimer testified
further that Employer’s policy agreement states that employment is at-will, includes language
regarding attendance, and notes that tardiness is unacceptable. (Id. at 30-31.)

                                              3
The Referee made the following relevant findings:
1.    [Claimant] was employed by [Employer] at $18 an
      hour, full-time, from April 2015 through
      February 13, 2017.
2.    [Employer] discharged [Claimant] for ongoing
      unresolved tardiness.
3.    On December 27, 2016, [Owner] was at the Sheetz
      warehouse between 7 and 8 a.m.
4.    [Claimant’s] starting time at the Sheetz warehouse
      was 7 a.m.
5.    Shortly prior to 8 a.m., [Owner] was inquiring as to
      [Claimant’s] whereabouts as he was expected to be
      at work at 7 a.m. and was not.
6.    In a text, [Owner] apprised [Claimant] that this was
      his last warning.
7.    [Claimant] did not respond to [Owner’s] text, and
      [Owner] had left shortly prior to 8 a.m. on
      December 27, 2016.
8.    On February 12, 2017, [Owner] sent [Claimant] a
      text at 6:18 p.m., advising [Claimant] to report at
      [Owner’s] place at 6:45 a.m. [on February 13] and
      divulged the worksite.
9.    On the same day, within an hour, [Claimant] texted
      back, “Okay.”
10.   On the morning of February 13, 2017, [Claimant]
      texted [Owner] that he had just awakened.
11.   [Owner’s] text back to [Claimant] advised
      [Claimant] to meet at the worksite.
12.   Approximately 8:45 a.m. on February 13, 2017,
      [Claimant] reached [Owner] by phone, inquiring
      where the worksite was.
13.   At the approximate time, [Owner] texted
      [Claimant], “Never mind. Will mail your last check.
      Not going to keep allowing this to go on. Will send
      termination letter with check,” ending [Claimant’s]
      employment.

                            4
            14.    It is approximately a half hour of travel from
                   [Claimant’s] home to the worksite they were
                   working at on February 13, 2017.

(C.R., Item No. 10.) The Referee, in affirming the Service Center’s determination,
concluded that Claimant was ineligible for benefits under Section 402(e) of the Law,
because Claimant engaged in willful misconduct. (Id.) The Referee reasoned, in
part:
            The Referee finds [Owner’s] testimony competent and
            credible that by a text, he had provided the claimant a final
            warning on December 27, 2016, regarding his inability to
            report to work at the time scheduled. . . . It is apparent,
            based upon the ongoing texts back and forth regarding the
            claimant’s arrival or not arrival [sic] on time, [Owner] was
            more than lenient with the claimant’s inability to arrive to
            work on time, even after the final warning or last warning
            on December 27, 2016. In fact, [Owner] appeared to be
            willing to allow the claimant to arrive to work late on
            February 13, 2017[,] until the claimant had not arrived at
            the site within a reasonable time after advising that he had
            just woken up. In fact, the Referee resolves conflicting
            testimony in regards to times of texts favorable to [Owner]
            that in fact, the texts occurred at 8:47 a.m. when [Owner]
            had finally given up on the claimant’s inability to report
            for work on time.

(Id.)
            Claimant appealed the Referee’s decision to the Board. (C.R., Item
No. 11.) The Board concluded that the Referee’s determination was proper under
Section 402(e) of the Law.      (C.R., Item No. 12.)       The Board adopted and
incorporated the Referee’s findings and conclusions, affirming the Referee’s
decision. (Id.) Claimant then petitioned this Court for review.




                                         5
              On appeal to this Court,3 Claimant argues that substantial evidence does
not exist to support the Board’s findings of fact. Claimant further argues that the
Board erred in concluding that Claimant engaged in willful misconduct. Claimant
also argues that the Referee deprived him of his right to due process.
              First, we will address Claimant’s argument that the Board’s findings of
fact numbers 2, 7, and 14 are not supported by substantial evidence. Substantial
evidence is defined as “relevant evidence upon which a reasonable mind could base
a conclusion.” Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740
(Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support
the Board’s findings, we must examine the testimony in the light most favorable to
the prevailing party, giving that party the benefit of any logical and reasonable
inferences that can be drawn from the evidence. Id. A determination as to whether
substantial evidence exists to support a finding of fact can only be made upon
examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of
Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s findings of fact are conclusive
on appeal if the record taken as a whole contains substantial evidence to support
them. Penflex Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). “The fact that [a party]
may have produced witnesses who gave a different version of the events, or that [the
party] might view the testimony differently than the Board is not grounds for reversal
if substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment
Comp. Bd. of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994). Similarly, even if
evidence exists in the record that could support a contrary conclusion, it does not


       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704.

                                               6
follow that the findings of fact are not supported by substantial evidence. Johnson
v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Moreover, “[i]t is well established within our jurisprudence that an unsupported
finding of fact which is not necessary to the adjudication merely constitutes harmless
error.”   Borough of Schuylkill Haven v. Prevailing Wage Appeals Bd.,
6 A.3d 580, 585 (Pa. Cmwlth. 2010).
             In an unemployment case, it is well settled that the Board is the ultimate
factfinder and is, therefore, entitled to make its own determinations as to witness
credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review,
501 A.2d 1383, 1388 (Pa. 1985). The Board is also empowered to resolve conflicts
in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 845 A.2d 253, 255
(Pa. Cmwlth. 2004). “Questions of credibility and resolution of evidentiary conflicts
are within the sound discretion of the Board, and are not subject to re-evaluation on
judicial review.” Peak, 501 A.2d at 1388.
             Finding of fact number 2 provides: “[Employer] discharged [Claimant]
for ongoing[,] unresolved tardiness.” (Referee’s Decision.) As to finding of fact
number 2, Owner testified that on December 27, 2016, he gave Claimant a final
warning about being late to work. Owner also testified that he instructed Claimant
to be at Owner’s house at 6:45 a.m., on February 13, 2017. Owner testified that on
February 13, 2017, Claimant notified Owner at 6:51 a.m. that he “just woke up” and
would “be on the road in a minute,” after which Owner instructed Claimant to go to
the worksite rather than Owner’s house. (C.R., Item No. 9 at 14.) Owner terminated
Claimant’s employment when Claimant failed to report to the worksite by 8:47 a.m.
As noted above, the Board, by adopting the Referee’s decision, found Owner’s




                                          7
testimony to be credible, such that finding of fact number 2 is supported by
substantial evidence.
             Finding of fact number 7 provides: “[Claimant] did not respond to
[Owner’s] text, and [Owner] had left shortly prior to 8 a.m. on December 27, 2016.”
(Id.) As to finding of fact number 7, Owner testified that on December 27, 2016,
following numerous instances of tardiness by Claimant, Owner sent Claimant a text,
giving him a final warning regarding his attendance, and Claimant did not respond
to Owner’s message. (Id.) Again, the Board found Owner’s testimony to be
credible. Thus, finding of fact number 7 is supported by substantial evidence.
             Finding of fact number 14 provides: “It is approximately a half hour of
travel from [Claimant’s] home to the worksite they were working at on
February 13, 2017.” (Referee’s Decision.) In making finding of fact number 14, the
Board appears to have relied on Owner’s initial testimony that Claimant had a half
hour drive or less to Owner’s house, located in Imler, Pennsylvania. Claimant
estimated the travel time from his home to the worksite on February 13, 2017, to be
an hour. (C.R., Item No. 9 at 28.) After a lengthy discussion during the hearing
among Owner, Claimant, and the Referee regarding routes, distances, and times, the
Referee stated that one hour would be a reasonable amount of time for Claimant to
travel from Claimant’s home to the worksite (in Martinsburg, Pennsylvania) where
Claimant was to work on February 13, 2017. (Id. at 30.) Owner agreed with the
Referee’s estimation of the travel time for that location. (Id.) Thus, we agree with
Claimant that finding of fact number 14 is not supported by substantial evidence.
             Our inquiry, however, does not end there. As discussed above, an
unsupported finding of fact does not result in reversible error if the finding is not
necessary to the adjudication. See Borough of Schuylkill Haven, 6 A.3d at 585. The


                                         8
duration of the drive from Claimant’s house to the worksite was not a necessary
finding of fact. As the Board observes in its brief, the time to the worksite was not
crucial in this instance, because even if the drive was one hour instead of thirty
minutes, Claimant was still not at the worksite almost two hours later, after Claimant
notified Owner that he had “just woke up” and would “be on the road in a minute.”
(Board’s Br. at 9; C.R., Item No. 9 at 14.) Thus, because finding of fact number 14
was not necessary to the decision, the unsupported finding constitutes harmless
error.
             We next address Claimant’s argument that the Board erroneously
concluded that he committed willful misconduct. Whether an employee’s conduct
constituted willful misconduct is a matter of law subject to our review. Walsh v.
Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Under
Section 402(e) of the Law, Employer bears the burden of proving that Claimant’s
unemployment is due to his willful misconduct. Id. at 369. “Willful misconduct” is
not defined by statute. The courts, however, have defined “willful misconduct” as:
             (a) Wanton or willful disregard of employer’s interests,
             (b) deliberate violation of the employer’s rules,
             (c) disregard of standards of behavior which an employer
             can rightfully expect of an employee, or (d) negligence
             indicating an intentional disregard of the employer’s
             interest or an employee’s duties and obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). “An
employer has the right to expect that his employees will attend work when they are
scheduled, that they will be on time and that they will not leave work early without
permission.” Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa.
Cmwlth. 1982). “[H]abitual tardiness is adequate grounds for a finding of willful
misconduct.” Id.


                                          9
              Willful misconduct will not be found, however, where a claimant can
show good cause. Id. A claimant shows good cause when he demonstrates that the
actions which resulted in the discharge of his employment were justifiable and
reasonable under the circumstances. Id. Generally, oversleeping does not constitute
good cause.     See Dep’t of Transp. v. Unemployment Comp. Bd. of Review,
479 A.2d 57, 59 (Pa. Cmwlth. 1984).          Under the remoteness doctrine, willful
misconduct will also not be found where there is an unexplained substantial delay
between a claimant’s misconduct and the employer’s termination of employment.
Raimondi v. Unemployment Comp. Bd. of Review, 863 A.2d 1242, 1247 (Pa.
Cmwlth. 2004). The remoteness doctrine provides that “[a]n incident of willful
misconduct cannot be so temporally remote from the ultimate dismissal and still be
the basis for a denial of benefits.” Tundel v. Unemployment Comp. Bd. of Review,
404 A.2d 434, 436 (Pa. Cmwlth. 1979).
              Claimant argues that because Employer failed to communicate
company policy and expectations, it should be held accountable for its chosen
standard of conduct. Claimant argues that he was simply maintaining the status quo.
The Board argues that Claimant, despite being given a warning regarding his
attendance, did not report to work on time and did not provide good cause. We agree
with the Board. Although Owner may have tolerated Claimant’s tardiness in the
past, on December 27, 2016, Owner gave Claimant a final warning about his
attendance. When an employer advises an employee “that a rule will be strictly
enforced, even though it had not been previously, violation of the rule . . . constitutes
willful misconduct.” County of Luzerne v. Unemployment Comp. Bd. of Review,
611 A.2d 1335, 1338 (Pa. Cmwlth. 1992) (quoting City of Greensburg v.
Unemployment Comp. Bd. of Review, 590 A.2d 388, 390 (Pa. Cmwlth. 1991)). Thus,


                                           10
on that date, Owner put Claimant on notice that Owner expected Claimant to be on
time for work. Despite this warning, Claimant overslept on February 13, 2017, and
was unable to arrive at work on time or at a reasonable time thereafter, resulting in
the termination of his employment. As Claimant was tardy again after a final
warning, without good cause, the Board did not err in concluding that Claimant
engaged in willful misconduct. Id. See Fritz, 446 A.2d at 333.
             Claimant cites the remoteness doctrine to further argue that Owner
condoned and accepted Claimant’s behavior by not issuing any discipline.
Regarding Claimant’s argument that Owner accepted his tardiness, the record
indicates that Owner permitted reasonable tardiness so long as it did not become an
issue. (C.R., Item No. 9 at 30-31.) Claimant was tardy on multiple occasions and
his tardiness on February 13, 2017, followed a final warning and exceeded two
hours. Regarding Claimant’s argument that the remoteness doctrine applies, the
record does not indicate that there was a substantial delay between Claimant’s
misconduct and the termination. Owner gave Claimant a final warning, and, when
Claimant was late again, Owner terminated Claimant’s employment that day. Thus,
Claimant’s reliance on the remoteness doctrine is misplaced.
             Finally, we address Claimant’s argument that the Referee deprived him
of his due process rights. The essential elements of due process in an administrative
proceeding are notice and an opportunity to be heard. Groch v. Unemployment
Comp. Bd. of Review, 472 A.2d 286, 287-88 (Pa. Cmwlth. 1984); Wojciechowski v.
Unemployment Comp. Bd. of Review, 407 A.2d 142, 143 (Pa. Cmwlth. 1979).
Unrepresented claimants are entitled to assistance from the referee in the form of
information regarding the unrepresented claimant’s rights, aid during the
examination and cross-examination of witnesses, and any assistance compatible with


                                         11
the impartial discharge of the referee’s official duties. 34 Pa. Code § 101.21(a). The
parties are permitted to present testimony which they believe is necessary to
establish their rights. 34 Pa. Code § 101.21(b). The parties are limited, however, by
the discretion of the tribunal. Id. “An abuse of discretion occurs if, in reaching a
conclusion, the law is overridden or misapplied or judgment exercised is manifestly
unreasonable or is the result of partiality, prejudice, bias, or ill will.” Henderson v.
Unemployment Comp. Bd. of Review, 77 A.3d 699, 713 (Pa. Cmwlth. 2013).
               Claimant argues that the Referee failed to meet his obligation to
Claimant as an unrepresented petitioner, thereby violating his right to due process.
We interpret Claimant’s argument, however, to be a claim that the Referee abused
his discretion. At the hearing, Claimant attempted to provide testimony by reading
directly from a prepared statement. (C.R., Item No. 9 at 20-21.) The Referee
requested that Claimant provide testimony but permitted Claimant to reference his
prepared statement while testifying. (Id.) The Referee merely prohibited the
verbatim reading of the prepared statement. (Id.) Our review of the record reveals
that the Referee assisted Claimant throughout the hearing with his testimony and
with questioning witnesses on cross-examination. There is nothing in the record to
indicate that the Referee failed to meet his obligation to Claimant. It was within the
discretion of the Referee to require Claimant to testify rather than read his prepared
statement at the hearing. The Referee, therefore, did not abuse his discretion or
deprive Claimant of his due process rights.4


       4
         Claimant also argues that the Board erred in including in the certified record witness
statements addressing Claimant’s overall attendance when the Referee sustained Claimant’s
objection to their admission based on hearsay. Claimant asserts that these statements could have
influenced the outcome and that their inclusion in the certified record was prejudicial. A review
of the Referee’s decision and the order of the Board reveals that these statements were not relied


                                               12
               Accordingly, we affirm the order of the Board.




                                                 P. KEVIN BROBSON, Judge




upon in denying Claimant benefits in this case. Thus, even if their presence in the certified record
was in error, we would conclude the error to be harmless.

                                                13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William Foreman,                  :
                     Claimant     :
                                  :
           v.                     :   No. 1025 C.D. 2017
                                  :
Unemployment Compensation         :
Board of Review,                  :
                    Respondent    :



                                ORDER


           AND NOW, this 22nd day of August, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                  P. KEVIN BROBSON, Judge
