Opinion
No. 998 C.D. 2012
05-02-2013
Aspen Home Improvements, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Employer Aspen Home Improvements petitions for review of an order of the Unemployment Compensation Board of Review (Board) that reversed the decision of a referee and granted Claimant William F. Thompson benefits, concluding that Section 402(e) of the Unemployment Compensation Law (Law), the discharge provision, was applicable and that Employer failed to establish that Claimant engaged in disqualifying willful misconduct. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Employer in its brief to this Court argues for the first time that the incorrect description of its name, Aspen Home Improvements versus Aspen Home Improvements, Inc., should invalidate the Board's decision. Employer, however, failed to raise an issue regarding its identity in response to Claimant's internet claim form, at the referee's hearing or in its reconsideration petition to the Board. Accordingly, we conclude that Employer waived any right to raise identity as an issue at this level of the proceedings. Heitczman v. Unemployment Comp. Bd. of Review, 638 A.2d 461, 463 n.5 (Pa. Cmwlth. 1994).
The facts as found by the Board are as follows. Last employed as a full-time installer, Claimant worked for Employer from January 1995 to December 2011, at a final annual salary of $52,000. In December 2011, Claimant proceeded to a job location where he was to install two double-hung windows and a round top window. Upon arrival, Claimant noticed heavy ice and frost on the roof of the structure. Necessarily having to go on the roof to perform the job, Claimant contacted Employer's head secretary and advised her that it was unsafe to work on the icy roof. She responded that Claimant needed to perform the job. Upon Claimant's return to the office, he got into a fight with the owner of the company over the color of the windows installed, which was wrong, and the unsafe working conditions. The owner told Claimant: "'[P]iss off, you are fired.'" Board's Finding of Fact No. 10. The owners' wife also advised Claimant that he was "finished." Id., No. 11. Subsequently, Employer advised Claimant to remove his tools and equipment from the company van and to have the van in the parking lot by 8:00 a.m. the next day. Claimant, however, returned the van and Employer's other items later that evening.
Although the finding indicates that Claimant's wife advised him that he was "finished," the finding should read owner's wife. February 14, 2012 Hearing, Notes of Testimony (N.T.) at 16; Reproduced Record (R.R.) at 22a.
The Lancaster UC Service Center initially determined that Claimant was ineligible for benefits under the voluntary quit provision, Section 402(b) of the Law, 43 P.S. § 802(b). After a hearing at which both parties appeared and testified, the referee affirmed. Upon appeal, the Board found Claimant's testimony credible that Employer discharged him from employment when the owner told him, "piss off, you are fired," and, accordingly, determined that the applicable provision was Section 402(e). Because Employer maintained throughout the proceedings that Claimant had quit his job, the Board concluded that Employer failed to establish that Claimant engaged in disqualifying willful misconduct. Employer's timely appeal to this Court followed.
As an initial matter, we address the Board's decision to apply Section 402(e) to Claimant's separation from employment, rather than Section 402(b). The notice of hearing advised the parties as to what issues could be addressed and both Section 402(b) and 402(e) were prominently included on the first page. Certified Record (C.R.), Item No. 7. In addition, the referee at the start of the hearing noted that there was conflicting information from the parties as to whether Claimant quit or Employer discharged him and, accordingly, advised the parties that he would take that under consideration when he issued his decision. February 14, 2012 Hearing, Notes of Testimony (N.T.) at 2-3; Reproduced Record (R.R.) at 8-9a. We conclude, therefore, that the Board properly substituted Section 402(e) for 402(b). Cassidy v. Unemployment Comp. Bd. of Review, 532 A.2d 524, 525 (Pa. Cmwlth. 1987). Accordingly, we turn to determining whether Claimant voluntarily quit or Employer discharged him from employment.
The issue of whether a claimant's separation was a voluntary quit or a discharge is a question of law for this Court to determine based on the supported findings of fact. Iaconelli v. Unemployment Comp. Bd. of Review, 892 A.2d 894, 896 (Pa. Cmwlth. 2006). It is well established that, if an employer's language contains both the immediacy and finality of a firing, the employee will be found to have been discharged. Wise v. Unemployment Comp. Bd. of Review, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). Here, the Board credited Claimant's testimony that the owner told him to "piss off, you are fired." N.T. at 9; R.R. at 15a. Further, the Board found that the owner's wife told Claimant that he was "finished." Id. at 10; R.R. at 16a. Finally, Claimant testified that Employer advised him to remove his tools and equipment from the company van and return it to the parking lot by 8:00 a.m. the next day. Id. The totality of these circumstances supports a legal conclusion that Employer discharged Claimant. See Wise, 700 A.2d at 1073 (dismissal may be inferred from phrases such as: "pick up your pay," "turn in your key," "pull your time card," "turn in your uniform," or "there's the door.") Accordingly, having concluded that Employer discharged Claimant, we turn to determining whether Employer established that Claimant engaged in disqualifying willful misconduct.
Section 402(e) of the Law provides, in pertinent part, that an employee shall be ineligible for compensation for any week "[i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . ." The term "willful misconduct" has been defined to include: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of work rules; (3) the disregard of standards of behavior which an employer can rightfully expect of its employee; or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008). The employer bears the initial burden of proving that the claimant engaged in willful misconduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012).
Although Employer continues to maintain that Claimant voluntarily quit, it asserts that Claimant's allegedly profane and aggressive behavior in front of witnesses on the last day of his employment constitutes willful misconduct such that he should be ineligible for benefits. The Board, however, accepted Claimant's version of the circumstances surrounding his separation. Credibility and evidentiary weight are determined by the Board, and its findings of fact are conclusive on appeal when the record, in its entirety, contains substantial evidence supporting those findings. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). In other words, if there is substantial evidence for the Board's findings, "[t]he fact that Employer may have produced witnesses who gave a different version of the events, or that Employer might view the testimony differently than the Board, is not grounds for reversal ...." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). The Board credited Claimant's testimony and we cannot overturn that credibility determination on appeal. Fitzpatrick v. Unemployment Comp. Bd. of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). Accordingly, viewing the evidence in the light most favorable to Claimant, as the party who prevailed before the Board, and giving him the benefit of all inferences that can logically and reasonably be drawn from the testimony, Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011), we affirm.
We reject the Board's contention that Employer failed to raise any issue concerning Claimant's alleged willful misconduct on the last day of his employment. To the contrary, as part of Employer's separation information, it included a letter outlining its assertions regarding Claimant's alleged foul language and offensive behavior in front of the owners, staff members and a customer. C.R., Item No. 3. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 2nd day of May, 2013, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge