M. Hochevar v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Maureen Hochevar, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 2147 C.D. 2007 Submitted: March 20, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: April 18, 2008 Maureen Hochevar (Claimant) petitions for review from the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee s denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).1 The facts, as found by the Board are as follows: 1. The claimant made an application for benefits dated May 27, 2007, and later found employment with Red Bull Distribution. 2. The claimant was excited about this new employment, and worked for the Company between July 16, 2007 and August 2, 2007. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Claimant was also found ineligible for benefits under Section 401(f) of the Law, 43 P.S. §801(f), because Claimant had not yet worked enough to earn six times her weekly benefit rate. That determination is not before this Court. 3. By the end of her employment, the employer was concerned about the claimant s driving habits, and the speed with which she drove. 4. The claimant continued to be excited about her work, and believed she was working well for employer. 5. By August 1, 2007, the claimant learned she faced demotion, and was upset about this. 6. On August 2, 2007, the claimant felt she had little to do, and was given little direction then. 7. Continuing work was slow, the claimant took a longlunch break. 8. The employer understood the claimant was going to a convenience store to pick up a beverage. 9. The claimant was gone for two and one-half hours, and could not be reached by her cell-phone. 10. Upon her return, the claimant explained she had gone to Barnes and Noble and had lost track of time. 11. Barnes and Noble is five minutes away from the claimant s work place. 12. The employer terminated the claimant s employment for her absence that day, and the claimant began claiming benefits the week ending August 11, 2007. 13. The claimant has not justified or demonstrated good cause for her extended absence as she was being paid $10.00 by the hour. Board Decision, November 13, 2007, (Decision), Findings of Fact Nos. 1-13 at 12. The Board determined that Claimant committed willful misconduct: 2 The Board agrees with the Referee s rationale stressing the fact the claimant was an hourly employee who decided to take a 2½ hour lunch without reporting off. The employer has shown that the claimant was essentially missing in action for two and one-half hour [sic] on her last day of work. The claimant had no reasonable justification for her actions that day, other than her concerns about her pending demotion in status with the Company due to poor job performance particularly the manner in which she drove the employer s vehicles and her attitude. Based on the above facts, the Board must conclude that the claimant s actions on her last day did rise to the level of misconduct, as suggested in Section 402(e) of the Law, and accordingly, benefits must be denied under that Section . . . Decision at 2-3. Claimant contends that the Board erred when it determined that her conduct constituted willful misconduct and a deliberate violation of the rules of Red Bull Distribution (Employer) and that, contrary to the Board s discussion, she was already demoted on her last day of work.2 Whether a claimant s conduct rises to the level of willful misconduct is a question of law subject to this Court s review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of 2 This Court s review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). 3 an employer s interest, deliberate violation of rules, disregard of standards of behavior which an employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer s interest or employee s duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). A single act may constitute willful misconduct if it is in open disregard of an employer s reasonable expectations. Roberts v. Unemployment Compensation Board of Review, 436 A.2d 1052 (Pa. Cmwlth. 1981). In the argument section of her brief, Claimant asserts that once she was demoted she realized she did not have work to keep her occupied, she became emotional and believed that she needed to leave the office to reassess her situation. Claimant does not deny that she left the workplace for the two and one-half hour period. And, she does not deny that she could not be contacted via her cellular telephone. Claimant s actions indicated an open disregard for the Employer s reasonable expectations that she be available while she was getting paid. This Court agrees with the Board that Employer established that Claimant s action constituted willful misconduct and that Claimant has no reasonable justification for her actions.3 3 Claimant asserts that the Board erred when it found that she faced a pending demotion because she was already demoted. Whether she was already demoted has no bearing on whether she committed willful misconduct. 4 Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Maureen Hochevar, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 2147 C.D. 2007 ORDER AND NOW, this 18th day of April, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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