The Philadelphia Parking Authority v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA The Philadelphia Parking Authority, : Petitioner : : v. : : Unemployment Compensation Board : of Review, : Respondent : BEFORE: No. 2282 C.D. 2007 Submitted: April 25, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: June 9, 2008 The Philadelphia Parking Authority (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) granting Francis A. Craig, Jr. (Claimant) unemployment compensation benefits. The Board affirmed the decision of the Unemployment Compensation Referee (Referee) that Employer failed to establish that Claimant s termination was the result of willful misconduct. Finding no error in the Board s adjudication, we will affirm. Claimant was employed full-time as an assistant coordinator in one of Employer s parking garages. Claimant began working for Employer on July 5, 2006, and his last day of employment was June 6, 2007. At the time Claimant was hired, he received a handbook that detailed Employer s policies and procedures. Relevant to this case are those provisions in the handbook that provide that an employee may be subject to discipline, up to and including termination, for absences without leave; use of uncertified sick leave; and defacing or damaging Employer s property. On May 2, 2007, Claimant wrote no cash in black marker on a cashier exit machine located in the parking garage. Claimant removed the writing from Employer s exit machine on the following day. Employer issued a written warning to Claimant that he would be subject to discipline for any such further conduct, i.e., defacing property. On May 5, 2007, Claimant failed to call-in and notify Employer of his absence that day. As a result, Claimant received a warning that a future absence of this type would subject Claimant to disciplinary action. On May 6, 2007, Claimant was again absent without leave, and Employer imposed a one-day suspension. Throughout his term of employment, Claimant received performance evaluations approximately every two months, and in almost every one he received an unsatisfactory rating in at least one category. On June 6, 2007, Claimant received a performance evaluation for the time period of March 2007 to June 2007, which gave him an unsatisfactory rating in multiple areas. On June 6, 2007, Claimant was discharged for unsatisfactory work performance. On June 10, 2007, Claimant filed for unemployment compensation benefits with the Altoona Unemployment Compensation Service Center (UC Service Center), stating that he lost his job as a result of lack of work. In response, Employer submitted an employer questionnaire, in which Employer described Claimant s willful misconduct as follows: 1. Absent without leave on May 5, 2007, and May 6, 2007. 2. Use of uncertified sick leave. 3. Defaced Employer s property. 4. Unsatisfactory work performance. 2 5. Claimant was untruthful with the UC Service Center when he stated that he was separated from his employment due to a lack of work. Certified Record, Item No. 3 (C.R. ___). Concluding that Claimant was not discharged for willful misconduct, the UC Service Center awarded him unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law).1 Employer appealed, asserting, inter alia, that Claimant had been untruthful with the UC Service Center. C.R., Item No. 5. A Referee conducted a hearing on October 2, 2007. At the hearing, the Referee stated that the issue to be resolved was whether Claimant s unemployment was caused by willful misconduct, thereby rendering him ineligible for benefits under Section 402(e) of the Law.2 Employer introduced the testimony of Mark Wilson, its operations department manager. Wilson testified that Claimant was absent without leave on May 5 and May 6, 2007, and that Claimant defaced Employer s property. However, 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) provides, in pertinent part: An employe 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 ¦ 43 P.S. §802(e). 2 The notice of hearing issued to the parties also indicated that the specific issues to be considered in the appeal were: whether Claimant s unemployment was due to discharge or temporary suspension from work for willful misconduct connected with employment; whether Claimant s unemployment was due to voluntarily leaving work without cause of a necessitous and compelling nature; and whether Claimant was able and available for suitable work. C.R., Item No. 7. 3 Wilson conceded that after Claimant had been warned that further violations could result in termination, no further violations occurred. Wilson stated that Claimant was terminated for a history of unsatisfactory work performance. Wilson further testified that Claimant may have had seasonal employment with another employer. Employer also introduced the testimony of Delbert Wech, its operations duty supervisor. Wech testified that Claimant consistently made mistakes and that his performance was not satisfactory. But for the problems with his job performance, Claimant would have been allowed to keep his job with Employer. Wech agreed that Claimant was permitted to continue his employment after the verbal warnings and one-day suspension for his infractions of Employer s work policy. Wech also testified that Claimant may have had seasonal employment with another employer. In response, Claimant appeared pro se and testified that after the warning and one-day suspension, he did not repeat the acts that had prompted his prior discipline. Claimant testified that he worked to the best of his ability; got along well with other employees; and made an effort to satisfactorily complete his job requirements. Claimant conceded that he had limited seasonal employment with another employer. The Referee affirmed the determination of the UC Service Center that Claimant was entitled to unemployment compensation benefits under Section 402(e) of the Law. The Referee resolved the conflict in the testimony between Claimant and Employer s witnesses in favor of Claimant, and he concluded as follows: The Referee does not question that in this particular case, the [E]mployer regarded the [C]laimant as an unsatisfactory employee, and one who did not come up to the levels of performance desired by the [E]mployer. Further, the Referee does not question the [E]mployer s right to terminate the [C]laimant. However, neither of these theories will sustain a 4 finding of ineligibility under Section 402(e) of the Law as the Referee finds the [C]laimant s testimony credible he was attempting to work to the best of his ability and did not intentionally violate any rules, policies, or procedures of the [E]mployer after being issued the above warnings and suspension by the [E]mployer. Referee Decision, at 2; C.R., Item No. 9. Because Employer failed to establish that Claimant was terminated for willful misconduct, the Referee found him eligible for benefits. Employer appealed to the Board, challenging the Referee s determination that Claimant s actions did not amount to willful misconduct under Section 402(e). Employer also asserted that the Referee erred by not considering whether Claimant was disqualified from receiving benefits for having seasonal work with another employer. The Board affirmed the Referee s award of benefits. The present appeal followed.3 On appeal, Employer raises the same issues as before the Board. It argues, first, that Claimant is ineligible by reason of his willful misconduct. Second, Employer contends that Claimant is ineligible for unemployment compensation 3 The scope of appellate review in unemployment compensation cases is limited to determining whether constitutional rights were violated, whether errors of law were committed or whether findings of fact are supported by substantial evidence. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). In unemployment compensation proceedings, the Board is the ultimate factfinder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. Findings made by the Board are conclusive and binding on appeal if the record, when examined as a whole, contains substantial evidence to support those findings. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001) (citation omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233, 1238 (Pa. Cmwlth. 2001). 5 benefits because he had seasonal employment with another employer. We consider the issues seriatim. Employer first argues it established that Claimant was terminated for willful misconduct. Specifically, Employer contends that the following conduct on the part of Claimant supports a finding of willful misconduct: he defaced Employer s property; he was absent without leave; he used uncertified sick leave;4 and he was negligent in the performance of his daily work. Willful misconduct has been defined as the (a) wanton and willful disregard for an employer s interests, (b) deliberate violation of an employer s rules, (c) disregard for standards of behavior which an employer can rightfully expect of an employee, or (d) negligence indicating an intentional disregard of the employer s interests or an employee s duties and obligations. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004) (quoting Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)). Employer s handbook specified that employees may be subject to discipline, including and up to termination, for defacing Employer s property and taking absences without leave. There is no dispute that these incidents occurred; however, Employer did not discharge Claimant at the time of their occurrence. Rather, Employer chose to impose a lesser discipline, i.e., warnings and a one-day suspension. Because the absences without leave and damage to Employer s property 4 Although Employer has repeatedly asserted that Claimant used uncertified sick leave, Employer failed to present any evidence or argument in this regard at the administrative proceeding below and, thus, it cannot be raised here. See PA. R.A.P. 1551(a) ( No question shall be heard or considered by the court which was not raised before the government unit ¦. ). Employer has also failed to brief this issue. Consequently, this issue is not properly before this Court and will not be addressed herein. 6 were not the events that caused Claimant s termination, they do not support a finding of willful misconduct. Claimant was terminated as a result of his unsatisfactory performance evaluation. Indeed, Claimant did not dispute that he made mistakes in his employment. However, the Referee found that Claimant worked to the best of his ability and made an effort to do a good job. He credited Claimant, and not Employer s witnesses, on this point. The Board adopted the Referee s findings and conclusions. It is axiomatic that the Board, not this Court, has the power to resolve questions of credibility and to weigh the evidence. Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Substantial evidence supports the finding that Claimant was dismissed for poor job performance, but poor job performance does not constitute willful misconduct. Employer next argues that the Board erred in failing to consider whether Claimant was ineligible by reason of having seasonal employment. In response, the Board contends that this issue was not before the Referee and, according to the Board, is irrelevant. Only the specific issues set forth in the notice of the appeal of the UC Service Center s decision can be considered by the Referee. 34 Pa. Code §101.85(a).5 As a corollary, the regulations provide that 5 The regulation states: The tribunal by which the appeal is to be heard shall schedule the appeal promptly for hearing and give at least 7 days notice of the hearing to the parties and their counsel or authorized agent of record, specifying the date, hour and place of hearing and specific issues to be covered at the hearing. 34 Pa. Code §101.85(a). There is an exception where the parties agree to hear more issues. 34 Pa. Code §101.87. 7 ¦ issues not previously considered or raised will not be considered by the Board, either upon application for, or in the determination of an appeal unless the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record. 34 Pa. Code §101.107(a). Employer s questionnaire submitted to the UC Service Center stated that Claimant had been terminated for willful misconduct and the UC Service Center rendered its decision on that basis. Employer s appeal before the Referee considered: whether Claimant s unemployment was due to discharge or temporary suspension from work for willful misconduct connected with employment; whether Claimant s unemployment was due to voluntarily leaving work without cause of a necessitous and compelling nature; and whether Claimant was able and available for suitable work. C.R., Item No. 7. The Referee repeated this point at the hearing. Although there was testimony that Claimant had seasonal employment with another employer, the possibility of other employment was not the issue.6 6 Indeed, in addressing Employer s argument, the Referee stated as follows: Because the issue here is why he was separated from this particular company (Employer). I am explaining to you if you are raising an issue regarding whether he was employed with someone else or may have been self-employed or something of that nature, you would present that to the Service Center. They would do an investigation regarding that matter, okay, and then if there is a Decision rendered and either party disagrees with that, then that would be before the Referee to consider, but we are not getting into that. Notes of Testimony, October 2, 2007, at 31-32 (N.T. ___). The Referee further explained: Okay. All right. That is a separate issue now. The Referee wants -- when the Referee renders a Decision, the Referee may put some information in the Decision that the Referee may have the Service Center investigate that to determine his dates of employment, why he was separated from that employment, and whether or not he properly reported his earnings for those particular weeks and then after they conduct that investigation, then he would have to issue a separate Decision regarding that matter. N.T. 36. 8 Accordingly, Employer s claim that Claimant s seasonal work with another employer rendered him ineligible was not an issue preserved by Employer and will not be considered for the first time on appeal. See PA. R.A.P. 1551(a).7 For the foregoing reasons, we will affirm the Board s decision that Claimant is entitled to unemployment compensation benefits. ______________________________ MARY HANNAH LEAVITT, Judge 7 It states, in relevant part, as follows: Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit ¦. PA. R.A.P. 1551(a). 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA The Philadelphia Parking Authority, : Petitioner : : v. : : Unemployment Compensation Board : of Review, : Respondent : No. 2282 C.D. 2007 ORDER AND NOW, this 9th day of June, 2008, the order of the Unemployment Compensation Board of Review dated November 15, 2007, in the above-captioned matter is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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