Opinion
No. 463 C.D. 2013
08-29-2013
Hector Luis Cabrera-Kuilan, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Hector Luis Cabrera-Kuilan (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the order of the Referee and found Claimant ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The Referee's findings of fact and conclusions of law as adopted by the Board are as follows:
1. The claimant had been employed for Taylor's Garage, a position he had held from March 6, 2012 through a last day of employment of October 26, 2012.
2. The claimant was released from that full time permanent position as a result of failing to work the scheduled hours.
3. The claimant had been warned previously by the owner regarding his inability to meet the scheduled hours.Board's Findings of Fact (F.F.), March 1, 2013 at 1.
4. The employer initially thought that the claimant had abandoned his continuing employment when he failed to show up for work.
5. The claimant had requested time off from work for schooling, not working on Monday, Tuesday, or Thursday.
6. The claimant, when he reported again for work after failing to report for several shifts, was told he was being discharged for absenteeism.
The Referee concluded:
In the instant case, with neither the claimant nor the employer appearing at the appeal hearing, the Referee must base his Decision/Order upon the written documents provided to the Unemployment Compensation Service Center by both parties. The claimant indicates that he was never told or warned about any issues other than an argument he had with the employer about a work performance issue at which time the claimant was told to turn in his keys and uniform. The employer responds that the reason for the claimant's being discharged from that employment was for failing to show up for scheduled shifts. The claimant had requested time off for schooling; was informed that he had a full time position, and that he should be reporting to work for that full time position. When the claimant failed to show up for work on several occasions, the employer considered that he had abandoned his continuing employment and acted accordingly. When the claimant did return to work, the claimant was advised that he was being terminated because he would not work the shifts scheduled. Therefore, the Referee must conclude that the
Service Center's denial of benefits under Section 402(e) ... was proper.Referee's Decision, December 27, 2012 at 2. (Emphasis added.)
Claimant, proceeding pro se, contends that he did not receive proper notice of the scheduled hearing before the Referee and that the Board erred as a matter of law when it determined that he was ineligible for benefits pursuant to Section 402(e) of the Law.
This Court's scope of review over the Board is limited to determining whether findings of fact are supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Keystone Coca-Cola Bottling Corp. v. Unemployment Compensation Board of Review, 693 A.2d 637, 642 (Pa. Cmwlth. 1997), appeal denied, 553 Pa. 684, 717 A.2d 535, certiorari denied, 525 U.S. 867 (1998).
Claimant' erroneously cited Section 402(b) of the Law in the Statement of Questions Involved. Brief for Claimant at 6. However in Claimant's Petition for Review and the Argument section of his brief, Claimant challenged the fact that he was fired for willful misconduct, a challenge falling under Section 402(e) of the Law. Brief for Claimant at 9.
The Board responds that Claimant waived any argument regarding the Board's F.F. because Claimant failed to challenge those findings in his petition for review. The Board argues that because Claimant failed to raise the issues of proper notice and willful misconduct in his petition for review, he is precluded from raising them on appeal.
Pennsylvania Rules of Appellate Procedure 1513 (Petition for Review) requires:
(d) Content of appellate jurisdiction petition for review. An appellate jurisdiction petition for review shall contain: (1) a statement of the basis for the jurisdiction of the court; (2) the name of the party or
person seeking review; (3) the name of the government unit that made the order or other determination sought to be reviewed; (4) reference to the order or other determination sought to be reviewed; (5) a general statement of the objections to the order or other determination; and (6) a short statement of the relief sought.... The statement of objections will be deemed to include every subsidiary question fairly comprised therein.
Claimant's Petition for Review states in its entirety:
I believe the order is wrong because their [sic] is no burden of proof in misconduct [sic] in my case. Misconduct must show two things: delibrate [sic] disregard of the employer intrests [sic], and at least one prior warning for misconduct. A warning should be in writing, dated and signed by both the employer and employee. In case of a dispute over the issuance of warning, the employee's signature on the warning constitutes clear evidence that he was indeed given a warning. Which I was never given or sign [sic] for a warning.Petition for Review, March 28, 2013.
Despite the fact that Claimant raised the issue of insufficient service of his hearing date in his brief, there is no mention of this issue in Claimant's petition for review. The issue is therefore waived. Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608 (Pa. Cmwlth. 2006). See also Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264 (Pa. Cmwlth. 2009).
However, Claimant clearly challenged the Referee's determination that he was terminated for willful misconduct, therefore this Court must address this argument on its merits.
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 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). The employer bears the burden of proving the existence of the work rule and its violation. Once the employer establishes that, the burden then shifts to the Claimant to prove the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
34 Pa. Code §101.51 provides:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available
records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code §101.51.
This Court has interpreted Section 502 of the Unemployment Compensation Law, 43 P.S. §822, in conjunction with 34 Pa. Code §101.51 to show that the legislature intended for referees to decide unemployment compensation cases on the merits, even in the absence of either or both parties. Gadsen v. Unemployment Compensation Board of Review, 479 A.2d 74, 76 (Pa. Cmwlth. 1984).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822. Section 502 provides in relevant part:
An appeal from the determination ... of the department is taken, a referee shall, after affording the parties and the department reasonable opportunity for a fair hearing affirm, modify, or reverse such findings of fact and the determination ... of the department as to him shall appear just and proper....
In Clairton v. Unemployment Compensation Board of Review, 639 A.2d 921 (Pa. Cmwlth. 1994), this Court reviewed the board's determination that an employer who failed to appear before the Referee necessarily failed to sustain its burden of proof for willful misconduct. This Court determined:
Here, the situation before the referee and the [b]oard was one in which both parties failed to appear for the scheduled hearing. In such a situation, as provided in Section 101.51, it is within the tribunal's discretion to render a determination upon the "pertinent available records," or to reschedule a hearing and notify the employer and the claimant of the new hearing date. The referee and [b]oard chose to dispose of this matter in the
absence of both [e]mployer [Clairton Municipal Authority] and [c]laimant [Mark J. Bekavac]. Having so decided, it was incumbent upon the referee and Board to render a decision based on the 'pertinent available records;' however, instead of so doing, they based their decisions on the nonappearance of Employer [Clairton Municipal Authority] as constituting a failure on the part of Employer [Clairton Municipal Authority] to sustain its burden of demonstrating Claimant's [Mark J. Bekavac's] willful misconduct. This was an error of law.Id. at 923. (Footnotes Omitted.)
In the present matter, the Referee, in its discretion, choose to make a determination based upon the pertinent available records. The records available to the Referee were the Unemployment Compensation Service Center (Service Center) Questionnaires filled out by both Employer and Claimant, and the Oral Interviews of both Employer and Claimant conducted by the Service Center.
Claimant stated in his questionnaire that he was discharged because: "Me [sic] and John [Owner of Taylor's Garage] had an argument about him telling me to do one thing one way and then telling me another. Finally John told me to leave, turn in my uniforms and hand in my keys." Claimant also stated "I have no reasons for why he fired me." Claimant's Service Center Questionnaire, October 31, 2012 at 1. Employer's Questionnaire stated that Claimant was separated because he was never available for work. Specifically: "For the last month, Hector [Claimant] advised the employer that he could not work Monday, Tuesday, and Thursday due to schooling. This was a full-time position." Employer's Service Center Questionnaire, November 2, 2012 at 1.
In his Oral Interview, Claimant stated: "I was going to school at [M[ccann's-- I was working full time since [M]arch leaving an hour early for school then about two weeks prior to the discharge he changed it to part [time] hours and that I would be on call for [all of] Friday and [Saturday]." Record of Claimant's Oral interview, November 16, 2012 at 1.
Employer responded and stated:
[I] did not [put] him on [part time] I do not have [part time hours.] [T]his was a full time position[.] [H]e [Claimant] would never come in on his scheduled time-[I] thought he had quit then he showed up and [I] again told him he needs to be here when he is scheduled and since he could not we parted ways [.] [H]e was separated for not working his shifts and he was warned.Record of Employer's Oral Interview, November 20, 2012 at 1.
Based upon the available records, the Referee's finding of willful misconduct is supported by sufficient evidence. This Court has held that unauthorized absences without good cause constitute willful misconduct under Section 402(e) of the Law. Smith v. Unemployment Compensation Board of Review, 429 A.2d 119 (Pa. Cmwlth. 1981). Employer stated that Claimant was not given permission to adopt part time hours, and both parties agree that Claimant was not working full time hours leading up to his termination. The Board, as the ultimate fact finder, is free to accept or reject the testimony of any witness in whole or in part. Keystone, 693 A.2d at 649; see also Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987). The Board (by adopting the Referee's opinion in full) credited the testimony of the Employer when it stated the Claimant was scheduled to work full time hours and was not transferred to a part time work schedule. The Board similarly credited the testimony of the Employer when it found that the Employee was terminated for absenteeism after missing several shifts.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 29th day of August, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge