A. B. Ziegler v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alan B. Ziegler, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 184 C.D. 2008 Submitted: June 20, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FLAHERTY FILED: July 25, 2008 Alan B. Ziegler (Employer) petitions for review of the order of the Unemployment Compensation Board of Review (Board), which reversed the referee s decision and determined that under Section 402(e) of the Unemployment Compensation Law (Law), Regina S. Shappell (Claimant) was eligible for benefits because she demonstrated good cause for her tardiness at work.1 We affirm the Board. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week: (e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is employment as defined in this act ¦. Claimant was discharged from her employment on March 28, 2007 and thereafter applied for benefits. Claimant s application was granted by the job center. Employer appealed and a hearing was held before a referee, who reversed the job center s determination. Claimant appealed to the Board, which affirmed the referee. Claimant appealed to this court and upon application by the Board and agreement of the parties, we remanded the case to the Board in order to specifically address credibility, to determine if Claimant had good cause for her tardiness and to reconsider its prior decision based upon the entire record. Thereafter, the Board vacated its prior decision and granted Claimant benefits. This timely appeal follows. The Board found that Claimant, a paralegal, had worked for Employer for over a year prior to her discharge on March 28, 2007. Upon starting her job with Employer, Claimant was given a letter outlining the terms and conditions of her employment, which, among other things, included a workday from 8:30 a.m. until 5:30 p.m., with a one hour lunch break. Although not outlined in the letter, as part of her employment responsibilities, Claimant had to serve subpoenas and perform other business-related activities for Employer, using her own personal vehicle. Claimant and her husband had two vehicles. However, one of their vehicles broke down on February 26, 2007, leaving them with only one vehicle to share. Claimant and her husband could not, at that time, afford to fix the broken vehicle. On the days in which Claimant did not have to serve subpoenas or other documents for Employer, Claimant s husband would drop Claimant off at work and then drive to his work location. Claimant, on these days, would arrive to work on time and work late, as she had to wait 2 until her husband picked her up after leaving his own job. However, on the days when Claimant was required to serve subpoenas or deliver other documents for Employer, Claimant dropped off her husband at his place of employment prior to arriving at her own place of employment, which caused her to be late on these occasions.2 Claimant was unable to take her husband to work at an earlier time because Claimant and her husband had to transport their children, who attended Catholic school, prior to dropping off her husband. Employer was aware of Claimant s situation.3 Claimant was unsure as to how long the situation would continue. Employer notified Claimant that her transportation situation could not continue indefinitely because she needed an automobile in order to complete her employment duties as a paralegal for Employer. Claimant informed Employer, however, that she was in the process of refinancing her home and that such money would be used to fix the car. On March 14, 2007, Employer began monitoring Claimant s attendance and noted that Claimant was two hours late on March 15, 2007. On March 16, 2007, Claimant was one and one-half hours late because her 2 Claimant s husband works in Chester Springs, which is approximately thirty miles from their residence in Adamstown and Claimant works in Reading, approximately thirteen miles from their residence. 3 If for example the employer came to the claimant with a subpoena to serve she would advise him that she did not have her car and would serve it the next day, but would probably be late for work because she would have to take her husband to work first, so the employer would be aware of what was going on. Board s Decision, Findings of Fact (F.F.) No. 14, at 2. 3 children s school had a two hour delay.4 Claimant was at least one hour late on March 21, 2007. On March 23, 2007, Claimant, after dropping off her husband at work, arrived at work on time; however, upon leaving Employer s office to serve a subpoena, Claimant got a flat tire and her son eventually changed her tire around noon of the same day. On March 28, 2007, Claimant was fifteen minutes late because Employer had paperwork for Claimant to deliver to a client and therefore, Claimant had to take her husband to work prior to arriving herself. On this date, March 28, 2007, Claimant informed Employer that she would be working through her lunch and leaving for the remainder of the day at approximately 1:30 p.m. to pick up her husband because he was getting out of work early and also to deliver papers to a client. On this same date, March 28, 2007, Claimant was discharged due to her unsatisfactory attendance record and for her inability to overcome her transportation problems. Based on the above, the Board determined that Claimant had transportation problems of which Employer was aware, and Claimant had attempted to resolve them. Claimant could not financially afford to get her other vehicle replaced or repaired. Additionally, there were no other cars available for Claimant to use. Likewise, Claimant could not afford to rent a vehicle. During the time period in question, Claimant was attempting to refinance her home so that she could repair her vehicle using the loan proceeds.5 4 Although Employer alleged that Claimant was also late to work on March 20, March 22, March 26 and March 27, the Board determined that Claimant was not late in arriving to work on these days. 5 In April 2007, Claimant successfully refinanced her home, paid off the loan on her second vehicle and had the vehicle repaired. F.F. No. 24, at 3. 4 The Board concluded that Claimant had good cause for her tardiness and that she made a reasonable attempt to overcome her transportation problem. As such, the Board determined that she was not disqualified from receiving benefits under Section 402(e) of the Law. In its first argument, Employer argues the Claimant, in arriving late for work engaged in willful misconduct, thereby disqualifying her from benefits.6 We disagree. Under Section 402(e) of the Law, 43 P.S. § 802(e), if a claimant is terminated or temporarily suspended for engaging in willful misconduct, the claimant is not eligible for benefits. Willful misconduct, though not explicitly defined by statute, has been defined as an act of wanton or willful disregard of the employer s interests, a deliberate violation of the employer s rules, a disregard of the standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer s interests or of the employee s duties and obligations to the employer. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991). The employer has the burden of proof to establish willful misconduct of the employee. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 438 (Pa. Cmwlth. 2000). However, an employee s actions which are justifiable or reasonable under the circumstances cannot be considered willful misconduct. Maldonado v. Unemployment Compensation Board of 6 Our review is limited to a determination of whether constitutional rights were violated, whether an error of law was committed and whether necessary findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987). 5 Review, 503 A.2d 95, 97 (Pa. Cmwlth. 1986). The question of whether the behavior for which a [claimant] is discharged constitutes willful misconduct is a question of law subject to review by this court. Runkle v. Unemployment Compensation Board of Review, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). It is well settled that [a]bsenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary. Runkle, 521 A.2d at 531. The same is true of excessive absenteeism, as this Court has stated that [e]ven excessive absenteeism, where justified or where properly reported according to company policy, although a legitimate basis for discharge, does not constitute willful misconduct or disqualify a claimant from receiving unemployment compensation benefits. Adept Corporation v. Unemployment Compensation Board of Review, 437 A.2d 109, 110 (Pa. Cmwlth. 1981). Moreover, [i]f a claimant is absent because of transportation problems beyond [her] control and properly reports [her] necessary absence, [s]he may not be found to have engaged in willful misconduct and unemployment compensation benefits may not be denied on that ground. Adept, 437 A.2d at 111. Likewise, [e]xcessive lateness where warnings were given can be a basis for a determination of disqualifying willful misconduct.... An employee, however, can be eligible for benefits if [her] lateness was for good cause, i.e. justifiable under the circumstances. Herbert v. Unemployment Compensation Board of Review, 554 A.2d 616, 618 (Pa. Cmwlth. 1989). 6 Here, the Board determined that Claimant was late to work due to transportation problems resulting from Claimant and her husband having only one working automobile between them and that Claimant had notified Employer of her resulting transportation difficulties in being able to arrive at work on time. Claimant had no other viable option, other than arriving late to work on days which she was required to use her vehicle for work purposes. Claimant informed Employer that she was refinancing her home in order to get the automobile fixed. As such, the Board further determined that Claimant had good cause for her tardiness and made a reasonable attempt to overcome her transportation problem. We agree with the Board. In its second argument, Employer argues that the Board erred in crediting the testimony of Claimant. We disagree. Although the weight to be given the evidence and the credibility to be afforded the witnesses are within the province of the Board as finder of fact ¦such a body is not free to ignore the overwhelming evidence in favor of a contrary result not supported by the evidence. Borello v. Unemployment Compensation Board of Review, 490 Pa. 607, 618-19, 417 A.2d 205, 211 (1980). Likewise, this Court may not reweigh evidence in reviewing factual findings of the Board. Fitzpatrick v. Unemployment Compensation Board of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). In the present case, the Board explicitly stated that it finds the claimant s testimony credible and resolves any conflicts in the testimony in favor of the claimant. Board s Decision, at 4. As previously indicated, the Board is empowered to determine the credibility of witnesses, which is 7 precisely what the Board did in the instant matter. Thus, the Board did not err in crediting Claimant s testimony including her statements that she could not immediately afford to fix her car, could not afford to rent a car and had no other car at her disposal. In accordance with the above, the decision of the Board is affirmed. ______________________________ JIM FLAHERTY, Senior Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Alan B. Ziegler, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 184 C.D. 2008 ORDER AND NOW, this 25th day of July, 2008, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. _______________________________ JIM FLAHERTY, Senior Judge
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