Contract Crushing Construction, Inc. v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Contract Crushing Construction, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1764 C.D. 2007 Submitted: February 15, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: April 4, 2008 Contract Crushing Construction, Inc. (Employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board), affirming the Referee s decision concluding that Robert A. Koch (Claimant) was not ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).1 We affirm. Claimant began working for Employer on September 17, 2006, as an equipment operator and grounds person. Claimant s final pay rate was $12.00 per hour and his last day of work was May 10, 2007. Claimant subsequently sought unemployment compensation benefits and was determined to be eligible for benefits by the local job center. Employer timely appealed that determination and 1 Act of December 5, 1936, Second Executive Sess., P.L. (1937), as amended, 43 P.S. § 802(e). a hearing was held before a Referee on July 3, 2007. Claimant, who was unrepresented, and Mr. William Corson (Mr. Corson), President of Employer, testified at this hearing.2 Mr. Corson testified that on May 11, 2007, Claimant did not report to work but called and said that he had been in a car accident that morning on his way to work. Mr. Corson also testified that the job site was in Norfolk, Virginia and that Claimant was expected to report to the job site on Monday, May 14, 2007. Mr. Corson testified that Claimant was aware of Employer s travel reimbursement program which included a mileage reimbursement in the amount of thirty-five cents per mile. Mr. Corson stated that he suggested that Claimant rent a car. He testified that it was his understanding that Claimant was to call Employer the next day, May 12, 2007, to discuss whether or not he would be reporting to work the following Monday. However, Mr. Corson indicated that Claimant did not call that day, but that a representative of Employer, Richard Corson, spoke to Claimant on May 14, 2007, at which time Claimant was informed that if he did not report to work the next day, he would be considered to have quit. Finally, Mr. Corson testified that Claimant never reported to work on May 15, 2007, or any time thereafter. Claimant testified that he was involved in a car accident on the way to work on May 11, 2007, which made reporting to work impossible. Claimant testified that his insurance company told him that he could rent a car for just two 2 Initially, Employer planned on presenting the testimony of Richard Corson, a representative of Employer, by telephone. After Mr. Corson s testimony concerning the conversation between Richard Corson and Claimant, the Claimant testified that there were no significant differences between his recollection of that conversation and Mr. Corson s testimony. The Referee discussed his concerns about the participation of a witness by telephone and Employer declined calling Richard Corson as a witness. 2 days, which meant that the car would have to be returned to the rental company on Monday, May 14, 2007. Claimant testified that he did not report to work on that day because he had to wait for the insurance adjuster to inspect his car for damages and the adjuster did not arrive until late in the day. Claimant stated that he was not told by Employer that he could be reimbursed for a rental car. Claimant testified that in the course of his conversation with Richard Corson on May 11, 2007, he was told to find a way [to work], it s not [Employer s] problem. (R.R. at 8a). Claimant testified that Richard Corson suggested he rent a car but never advised him that Employer would reimburse him for that expense. Claimant acknowledged that he was aware of Employer s travel reimbursement policy, but understood that the policy only covered reimbursement for mileage. Claimant stated that he checked into the prices for renting a car and did not have the $40.00 a day to rent a car to drive to the job site in Virginia. Claimant testified that although he normally traveled for the job, he never had to rent a car before and was never told that car rental fees were reimbursable travel expenses. Contrary to Mr. Corson s testimony, Claimant testified that he did speak to Richard Corson on May 12, 2007, and explained that he still did not have transportation and therefore could not report to the job site on Monday, May 14, 2007. Claimant testified that he was then told that if he did not report to work the following day, he would be essentially discharged from the job. Ultimately, the Referee issued a decision and order concluding that Claimant was not ineligible for benefits under Section 402(e) of the Law.3 The 3 In rendering his decision, the Referee affirmed the notice of determination from the local job center which had also concluded that Claimant was not ineligible under Section 402(e). 3 Referee rejected Employer s argument that Claimant had abandoned his job because Claimant failed to keep Employer updated about his transportation and failed to report to the job site. The Referee noted that Claimant had kept in contact with Employer by telephone and had informed Employer about all of his related transportation problems and developments. The Referee recognized that Claimant had made a valid point when he testified that Employer never offered to reimburse him for rental of a car or that it would otherwise assist him in getting transportation to the job site in Virginia. The Referee concluded that Employer did not offer Claimant the chance to use his mileage reimbursement fees to pay for a rental car. Finally, the Referee accepted Claimant s testimony that the conversations between Claimant and Employer left the Claimant with the impression that because he did not have transportation to Virginia, he no longer had a position with Employer. Employer filed a timely appeal to the Board. Employer argued that the Referee had erred in finding Claimant eligible for benefits under Section 402(e) and in failing to find him ineligible under Section 402(b) of the Law, 43 P.S. §802(b), because he abandoned his job without a necessitous and compelling reason. Employer claimed that the Referee had erred in finding that Claimant had been discharged from his job because Claimant had failed to establish that Employer acted in any fashion to terminate his position. Nevertheless, the Board rejected these arguments by Employer. The Board found that the record did not establish that Claimant had the requisite intent to voluntarily quit his job. The Board concluded that Claimant s separation from his employment was involuntary and based on his lack of transportation due to his car accident. The Board then considered if Employer 4 had sustained its burden of proving that Claimant had been discharged for willful misconduct and concluded that Claimant had good cause for not reporting to work in Virginia. The Board found Claimant s testimony credible that Employer had not told him that it would reimburse him for car rentals or that it would provide him with other transportation assistance. Therefore, the Board affirmed the Referee s decision, finding that Claimant was not ineligible for benefits under Section 402(e) of the Law. Employer thereafter filed a petition for review with this Court. On appeal,4 Employer argues that the Board erred when it found that Claimant was discharged from his employment as the undisputed evidence established that Claimant quit his job without cause of a necessitous and compelling nature. Employer also argues that the Board erred in finding that Claimant had no ability to report to work because the record established that he had not made any reasonable effort to find alternative transportation and Employer had offered alternate means of getting Claimant to the job site. Additionally, Employer argues that the Board improperly placed the burden on it to prove that it took steps to preserve the employment relationship based on Claimant s allegation that he did not know about Employer s policy for reimbursement for rental cars. We disagree with each of these arguments by Employer. Section 402(b) of the Law provides that an employee shall be ineligible for compensation for any week [i]n which his unemployment is due to 4 Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796 (Pa. Cmwlth.), petition for allowance of appeal denied, 548 Pa. 663, 698 A.2d 69 (1997). Moreover, the Board is the ultimate finder of fact and questions of credibility and evidentiary weight are matters for the fact finder and not a reviewing court. Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084 (Pa. Cmwlth. 1997). 5 voluntarily leaving work without cause of a necessitous and compelling nature. Whether an employee was fired or discharged from his job is a question of law and this Court must determine whether the facts surrounding the separation from employment constitute a voluntary resignation or a discharge. Maines v. Unemployment Compensation Board of Review, 532 A.2d 1248 (Pa. Cmwlth. 1987). Where an employee, without action by the employer, leaves or quits work, the employee s action is considered voluntary under the Law. Roberts v. Unemployment Compensation Board of Review, 432 A.2d 646 (Pa. Cmwlth. 1981). A finding of voluntary termination is precluded unless there is a conscious intention to leave the employment. Fekos Enterprises v. Unemployment Compensation Board of Review, 776 A.2d 1018 (Pa. Cmwlth. 2001). To be interpreted as a discharge, the employer s language must possess the immediacy and finality of a firing. Charles v. Unemployment Compensation Board of Review, 552 A.2d 727 (Pa. Cmwlth. 1989). The employer need not use the specific words fired or discharged. Wise v. Unemployment Compensation Board of Review, 700 A.2d 1071 (Pa. Cmwlth. 1997). An employer s words that the employee should not report back to work the following day if he could not meet the daily standards are considered to show the requisite immediacy and finality necessary to constitute a discharge. Torsky v. Unemployment Compensation Board of Review, 474 A.2d 1207 (Pa. Cmwlth. 1984). Based upon our review of the evidence of record, we cannot say that the Board erred in determining that Claimant was discharged from his job and in applying Section 402(e), as opposed to Section 402(b), of the Law. Employer does 6 not dispute that its representative, Richard Corson, had informed Claimant that if he did not report to work on Tuesday, May 15, 2007, then Employer would consider him to have quit his employment. Claimant testified as to his belief that the failure to report to work that day would result in his termination. Specifically, Claimant testified that Richard Corson had informed him that if he did not report to work, he would no longer [be] needed. (R.R. at 8a). The Board accepted this testimony as credible. Based upon this credible testimony, the Board concluded that Claimant was involuntarily separated from his employment. Hence, the Board proceeded to analyze this case under Section 402(e), rather than as a voluntary quit under Section 402(b) of the Law. Section 402(e) of the Law provides that an employee shall be ineligible for compensation if his unemployment was due to willful misconduct connected with his work ¦. The employer bears the burden of proving willful misconduct. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa. Cmwlth. 2000). Willful misconduct includes behavior that evidences a willful disregard of the employer s interests, the deliberate violation of the employer s work rules, and the disregard of standards of behavior that the employer can rightfully expect from its employees. Altemus v. Unemployment Compensation Board of Review, 681 A.2d 866 (Pa. Cmwlth. 1996), petition for allowance of appeal denied, 547 Pa. 757, 692 A.2d 567 (1997). In the present case, the evidence of record indicates that Claimant was involved in an automobile accident on his way to work on Friday, May 11, 2007. Claimant notified Employer of the accident that same day and his inability to report to work. Claimant also spoke to Richard Corson on May 12, 2007, and advised him of his transportation situation. Although Claimant had a rental car 7 that weekend, this car was paid for by Claimant s automobile insurance company and had to be returned on Monday, the same day that an adjuster was scheduled to examine Claimant s damaged vehicle. Claimant again spoke to Richard Corson on Monday to advise him that he was unable to report to work that day. At that time, Richard Corson informed Claimant that if he failed to report the next day, May 15, 2007, he would be considered to have quit his employment. Claimant s vehicle was not repaired until May 16, 2007, and was not picked up until May 17, 2007.5 Claimant inquired into renting a car but he did not have sufficient funds to cover the daily rental fee of $40.00 plus mileage. While Claimant was aware of Employer s mileage reimbursement policy, Claimant was not aware of any policy of Employer providing for reimbursement of rental car fees. Based upon this credible evidence of record, the Board concluded that Claimant had good cause for not reporting to work on May 14 and 15, 2007, and that his actions did not rise to the level of willful misconduct such that he was ineligible for benefits under Section 402(e) of the Law. We see no error on the part of the Board in this regard.6 5 At the Referee s hearing, Claimant submitted a bill into evidence from the garage that repaired his vehicle indicating that said repairs were not completed until May 16, 2007. 6 Based upon our determinations above, we need not address Employer s argument that Claimant lacked cause of a necessitous and compelling nature to voluntarily quit his employment. We agree with the Board s conclusion that Claimant did not voluntarily quit his employment. 8 Accordingly, the order of the Board is affirmed. JOSEPH F. McCLOSKEY, Senior Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA Contract Crushing Construction, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1764 C.D. 2007 ORDER AND NOW, this 4th day of April, 2008, the order of the Unemployment Compensation Board of Review is hereby affirmed. JOSEPH F. McCLOSKEY, Senior Judge

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