Opinion
No. 381 C.D. 2014
12-30-2014
Joseph J. Olcese, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Claimant Joseph J. Olcese petitions for review of the order of the Unemployment Compensation Board of Review affirming the denial of his application for benefits. In doing so, the Board affirmed the referee's determination that Claimant committed disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. § 802(e), when he falsified his time record. After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
The underlying facts need little discussion. While there was conflicting testimony before the referee, the credited evidence reflects that Claimant, a carpenter, turned in a time sheet that reflected that he left the job site at 4:00 p.m. on the day in question. The Claimant's supervisor arrived on the job site at 3:15 p.m. on the same day, however, and Claimant was not there. Claimant was subsequently discharged for leaving work early and falsifying his time record. While Claimant denied that he left before 4:00 and his co-worker testified that Claimant was still on the job site at 3:30, this evidence was rejected in favor of the supervisor's testimony to the contrary.
The supervisor testified that no one was at the job site when he arrived. Claimant's co-worker was also discharged. --------
We begin by noting that it is well settled that falsification of a time record constitutes willful misconduct. Diachenko v. Unemployment Comp. Bd. of Review, 457 A.2d 207, 208 (Pa. Cmwlth. 1983). Turning to the appeal, Claimant first argues that: "In order to establish that Claimant violated the policy regarding leaving a job site early, Employer is obligated to establish what time Claimant was required to be present," and, here, no testimony was presented to establish the hours Claimant was supposed to work on the day in question. Claimant's brief at 9. Because this issue was not raised before the Board or in the petition for review to this court, it has not been preserved for appellate review and is deemed to be waived. See Pa. R.A.P. 1513; Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006); 2 Pa. C.S. § 703(a); Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011). Even if the issue had not been waived, a reasonable inference from the findings and evidence is that, if Claimant reported remaining at work until 4:00 but was not present at 3:15, he left early that day. It is well settled that we "examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony . . . ." Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). Finally, even if Claimant were not required to work until 4:00, he nonetheless falsified his time record.
Next, noting that the employer's policy prohibits "willful falsification" of a time record, Claimant argues that the record fails to demonstrate that Claimant acted willfully, as opposed to inadvertently, in reporting his departure time on the day in question. This argument lacks merit. Claimant testified only that he worked until 4:00 p.m. on the day in question; he did not testify that he inadvertently reported the wrong time. Moreover, Claimant's supervisor testified that he went to the job site that day because Claimant had previous incidences of time sheet violations. In light of the credited evidence, the referee and Board reasonably inferred that Claimant intentionally left the job site at one time but reported a later time on his time sheet. Taylor. Based upon the above, we conclude that there is no merit to the appeal and affirm the Board's order.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 30th day of December, 2014, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge