S. A. Mahoney v. UCBR (Majority Opinion)
Annotate this Case
Download PDF
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sharon A. Mahoney, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1621 C.D. 2007 SUBMITTED: February 8, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENà E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: July 24, 2008 Sharon A. Mahoney, pro se, petitions this court for review of an Unemployment Compensation Board of Review (Board) order affirming a referee s decision that she is ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. 1937 (2897), as amended, 43 P.S. § 802(e) [relating to discharge or temporary suspension from work for willful misconduct connected with work].1 1 In denying Mahoney benefits, the referee had reversed the decision of the local job center determining her to be eligible under Section 402(b) of the Law, 43 P.S. § 802(b) [relating to voluntary termination of employment for necessitous and compelling reasons]. From our review of the record, we note that Mahoney s internet initial claim form indicates that she quit her job because of a relocation that was forced due to extremely difficult circumstances regarding her children s father. See Certified Record (C.R.), Item #2. Moreover, the employer s separation information indicates that Mahoney voluntarily quit for personal reasons, although it further provides that she did not make an attempt to resolve the situation with her employer before quitting. See C.R., Item #4. In its Notice of Determination, the local job center found in pertinent part that Mahoney voluntarily quit because: it became necessary to relocate due to domestic issues involving her children. There were no possible alternatives for the Claimant to resolve the situation. C.R., Item #7. In its petition for appeal from the job center s determination, the employer asserted that Mahoney was terminated due to willful misconduct arising from her failure to repay funds that she had stolen and her failure to appear at work from April 23 through May 1, 2007. See C.R., Item #8.2 A notice of hearing and revised notice of hearing list the specific issue to be considered as #15 on enclosed list and also indicate that #10, 17 on enclosed list may be considered, but there is no paperwork to indicate which issues those numbers actually represent. See C.R., Item #10. Only the employer s counsel and its witness, Judith Fellman, participated at the hearing; the referee was unable to reach Mahoney by phone. Accordingly, the referee stated: If the claimant were participating today, we would start with her side of the case because she bears the burden of proof under Section 402(b), and that is the section of the law that the service center rules [sic] under. But because 2 According to the appeal petition, the employer discovered the theft on February 12, 2007, and Mahoney admitted to it one day later. Id. 2 she s not here, you re free to place on the record any testimony and evidence besides regarding the reasons for the claimant s separation from employment. Notes of Testimony (N.T.), Hearing of June 27, 2007, at 4. After the hearing during which Mahoney did not participate, the referee made factual findings, adopted by the Board, as follows. Mahoney worked full-time as an office manager for a dental practice from June 6, 2006, until her last work day on April 18, 2007. She was scheduled to work on April 24, 2007, but she did not report to work on that date, and she did not call her employer to state a reason for her absence. From April 24, 2007, to May 2, 2007, Mahoney did not report to work and did not call to inform her employer of the reason for her absence. During that time period, the employer attempted to contact Mahoney several times. She failed to return the employer s phone calls. On May 2, 2007, the employer finally reached Mahoney and discharged her. The employer fired Mahoney for not reporting to work from April 24, 2007, to May 2, 2007, and for failing to call the employer to state the reason for her absence. The employer maintains an attendance policy that requires an employee to call and inform the employer if the employee is going to be absent and to explain the reason for the absence. Mahoney s actions violated the employer s attendance policy. See Findings of Fact Nos. 1-9, Referee s decision (mailed June 28, 2007), at 1. On appeal, the Board affirmed. Mahoney filed a request for reconsideration, which the Board eventually denied.3 Mahoney also appealed to this court, arguing that the Board committed an error of law when it determined 3 Mahoney s request was based on her assertion that, had the referee s office tried to call the alternate phone number she provided rather than merely trying her at home, she could have participated at the hearing, offering critical testimony that she was otherwise unable to provide. 3 that she violated her employer s attendance policy.4 Specifically, Mahoney contends that she was not discharged on May 2, 2007, for violating the policy; rather, due to severe problems with her children s father, she relocated herself and her children for safety reasons on April 28, 2007, thereby quitting her dental office manager job. Mahoney also asserts that she kept her employer apprised of her difficult personal situation before her voluntary quit and any finding to the contrary is not supported by substantial evidence. In response, the employer maintains that Mahoney did not report to work or call off from April 24 to May 2, 2007; consequently, her employment was terminated. The employer also argues that, because Mahoney did not participate in the hearing, she did not contradict the testimony of its witness, which substantially supports the Board s findings of fact. 5 4 Although Mahoney, citing a miscommunication, attached a copy of her reconsideration letter addressed to the Board to her petition for review filed here, she does not challenge the Board s denial of her request for reconsideration in this appeal. Instead, the question that Mahoney specifically raises in her statement of the question involved, and in her argument, is did the board commit an error of law when it determined that claimant violated the employer s attendance policy where it found no mens rea and its finding is not supported by substantial evidence? Mahoney s brief at 5. 5 Although not raised by Mahoney and thus not before us, we note that the referee should not have decided this matter under section 402(e). Willful misconduct was not an issue expressly ruled upon by the local job center, and there is no indication that Mahoney agreed to consideration of this case under that section of the Law. We explained in Classic Personnel v. Unemployment Compensation Board of Review, 617 A.2d 66, 69 n.7 (Pa. Cmwlth. 1992): 34 Pa. Code §§ 101.87 and 101.107 state that the tribunals should consider the issues expressly ruled upon in the decision from which the appeal was filed, except that another issue in the case may be determined with the approval of the parties or if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record. Nonetheless, the referee s error is clearly harmless because, by failing to participate in the hearing, Mahoney could not have met her burden under section 402(b). An employee who voluntarily quits her employment bears the burden of proving that the termination was for necessitous and compelling reasons. Davila v. Unemployment Comp. Bd. of Review, 926 A.2d (Footnote continued on next page ¦) 4 In reviewing the Board s determination that Mahoney was discharged for willful misconduct, [w]e must examine the evidence in the light most favorable to the party that prevailed before the Board, which in unemployment cases, is the ultimate fact finder. Sturpe v. Unemployment Comp. Bd. of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003) (citation omitted). Having reviewed the record, we are satisfied that the testimony of Judith Fellman, the employer s witness, supports the Board s determination that Mahoney was terminated for failing to report to work in violation of the employer s expectations. Fellman testified as follows: R Okay. Now on the 24th, you expected her [Mahoney] to come to work? EW Yes. R Okay. And she knew she had to come to work on that day? EW Right. R Between April 24th, and when you talked to her on May 2nd, did the employer discharge her? EW Yes. R He told her not to come back? _____________________________ (continued ¦) 1287 (Pa. Cmwlth. 2007). However, in a case involving discharge from employment, the employer has the burden of proving willful misconduct. Shearer v. Unemployment Comp. Bd. of Review, 527 A.2d 615, 621 (Pa. Cmwlth. 1987). Whether a claimant s separation from employment is voluntary or a discharge is a question of law for the court to determine from the totality of the record. Bell v. Unemployment Comp. Bd. of Review, 921 A.2d 23, 26 (Pa. Cmwlth. 2007) (citation omitted) (footnote omitted). 5 EW I didn t tell I didn t see if there was a point for her to come back. R her. I m trying to see if she quit or whether you fired EW She was terminated. R And why did you tell her she was terminated? EW Because she did not show up for work. R So you terminated her for being absent? EW Right. And no, you know, when we contacted her, no nothing. R So, she didn t quit. EW No, we terminated her. R Okay. You know why she was absent? EW She had plenty of excuses, a different one each time. .... R Between the 23rd and May 2nd, did she call it [sic] off to report why she was absent? EW No. R When you finally talked to her, did she tell you why she wasn t in? EW Why she had moved away and she said she decided to take a brief [sic] and move away. R Anything else Ma am that may come before the Referee? How did she know not to come back after the your conversation with her on the 2nd? I know she moved but what did you say to her? 6 EW I can t remember exactly how I worded to her [sic]. I believe it was along the effect that, you know, I m sorry to inform you this way, happens this way with her, and that she was terminated. Dr. Randy said that she s not coming back and I have already interviewed and hired someone to replace her. R Okay, but you told her that she had been terminated? EW Yes, I did. .... R You went through excessive testimony on the fact that money was missing. Was she terminated for missing money? Was she terminated cause she didn t make restitution? EW I m sure that s why he wanted to terminate her as well but I don t know the money was as much as she did not show up for work. R Okay. EL Did you not testify, under oath, in there that she was on a probationary period? EW Yes, she was, with Dr. Randall Eckman. Actually, she was on probation. EL Okay. EW And our office policy states that you don t follow through with that, you re automatically terminated. N.T., Hearing of June 27, 2007, Testimony of Judith Fellman at 13-14. Based on this record, Mahoney s argument that the Board committed an error of law in concluding that she was ineligible for benefits under section 7 402(e) is not persuasive.6 Rather, there was ample evidence for the Board to decide that Mahoney s failure to report to work amounted to willful misconduct that violated the standards her employer reasonably expected. See, e.g., On-Line, Inc. d/b/a Sunrise Sunoco v. Unemployment Comp. Bd. of Review, 941 A.2d 786 (Pa. Cmwlth. 2008) (an employee s disregard of behavioral standards that an employer can rightfully expect is one definition of willful misconduct ). Accordingly, the Board s order is affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 Mahoney apparently is under the misimpression that factual allegations made in her brief can be taken and weighed by this court as evidence. While we sympathize with the plight of a pro se litigant who is untrained in the law, this court is limited to deciding the legal issues presented to us based upon the testimony presented to the referee and the Board s findings of fact based upon that record. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sharon A. Mahoney, : : : : : : : : Petitioner v. Unemployment Compensation Board of Review, Respondent No. 1621 C.D. 2007 ORDER AND NOW, this 24th day of July, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
