IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Stillitano, :
Petitioner :
:
v. : No. 2316 C.D. 2014
: Submitted: July 17, 2015
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: October 14, 2015
Linda Stillitano (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board)
holding that Claimant was ineligible for unemployment benefits under Section
402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e).1 In
doing so, the Board affirmed the Referee’s decision that Claimant committed
disqualifying misconduct by acting unprofessionally toward a co-worker without
good cause. We affirm.
1
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
This section states, in relevant part, that a claimant is ineligible for unemployment benefits when
“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[.]”
Claimant was employed as an outpatient representative at St. Luke’s
University Hospital (Employer) from February 20, 2012, until she was discharged
on July 3, 2014. The stated reason for Claimant’s discharge was violating
Employer’s policy prohibiting unprofessional behavior. On August 8, 2014, the
Allentown UC Service Center issued a Notice of Determination denying the claim.
Claimant appealed.
On August 25, 2014, a Notice of Hearing was sent to Claimant stating
that the Referee’s hearing was scheduled for “Monday 9/8/2014.” Certified
Record (C.R.), Item No.7. The hearing occurred at the appointed date and time.
Claimant did not appear. Employer attended and presented the testimony of Linda
Shannon, Employer’s supervisor for outpatient registration.
Shannon testified that Claimant was discharged for her unprofessional
confrontation with a co-worker. As part of her investigation, Shannon interviewed
Claimant and the co-worker and reviewed a security video recording of the
incident. Shannon described the incident as follows:
[The co-worker] was instant messaged by [Claimant] to go back
to a particular zone; I believe it was zone six, five or six to get
an ambulance. The [co-worker] ... was in another registration
so she couldn’t immediately leave where she was. And so she
did and she was heading towards the zone where she was to get
to the ambulance and [Claimant] had come down the hall
towards her and grabbed her computer and sort of pulled it and
then started verbally speaking with her. I believe it was, it
seems to be -- she said something to the affect, let me get that.
According to [Claimant] the [co-worker] overreacted and she
said to the [co-worker] that she shouldn’t get pissy with her. So
the [co-worker] was really, the [co-worker] was embarrassed
because there were other employees, there were doctors, there
were nurses and this all happened in front of the patient’s room.
So she was like verbally chastening [the co-worker].
2
Notes of Testimony, September 8, 2014, at 4 – 5 (N.T. __). Employer also offered
into evidence an excerpt of its employee handbook requiring employees to act in a
professional and courteous manner toward co-workers and prohibiting harassment.
The Referee found that Employer satisfied its burden of proving that
Claimant deliberately violated an established policy. Because Claimant did not
attend the hearing, she offered no evidence to establish either good cause for her
actions or that Employer’s policy was unreasonable. Accordingly, the Referee
concluded that Claimant was ineligible for unemployment benefits under Section
402(e) of the Law, 43 P.S. §802(e). Claimant appealed to the Board, explaining
that she did not attend the hearing because she misread the date. Claimant
contested Employer’s version of the facts and requested an opportunity “to give
my account of what happened.” C.R. Item No. 11. The Board adopted the
findings and conclusions of the Referee and affirmed his decision. Claimant now
petitions for this Court’s review.
On appeal,2 Claimant argues that the Board erred in not remanding the
matter to the Referee so that Claimant could present her side of the story.
Claimant contends that she misread the Notice of Hearing and believed the hearing
was scheduled for September 9, 2014, rather than September 8. According to
Claimant, such a mistake was understandable because of the similarity between the
numbers 8 and 9 and the small size of the text. The Board counters that Claimant’s
negligence in misreading the notice did not justify reopening the record. We agree
with the Board.
2
Our review is to consider whether the findings of fact are supported by substantial evidence,
Claimant’s constitutional rights were violated, or an error of law was committed. Miller v.
Unemployment Compensation Board of Review, 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).
3
A party who fails to appear at a scheduled hearing must demonstrate
“good cause for that failure before the Board will delay the final disposition of the
case by remanding for additional hearings.” McNeill v. Unemployment
Compensation Board of Review, 511 A.2d 167, 169 (Pa. Cmwlth. 1986). This
Court has repeatedly held that a party’s own negligence is not legally sufficient
“good cause” for failing to appear at a Referee’s hearing. See, e.g., Eat’N Park
Hospitality Group, Inc. v. Unemployment Compensation Board of Review, 970
A.2d 492 (Pa. Cmwlth. 2008); Kelly v. Unemployment Compensation Board of
Review, 747 A.2d 436 (Pa. Cmwlth. 2000); and Sanders v. Unemployment
Compensation Board of Review, 524 A.2d 1031 (Pa. Cmwlth. 1987).
This Court has previously considered and rejected an argument
similar to Claimant’s. In Savage v. Unemployment Compensation Board of
Review, 491 A.2d 947 (Pa. Cmwlth. 1985), the claimant argued that he had good
cause for missing a Referee’s hearing because he misread the date on the Notice of
Hearing. We rejected the claimant’s contention and upheld the Board.
Claimant seeks to distinguish her case from Savage by emphasizing
that she misread the notice because the font was too small and the “9,” signifying
September, was too similar to the “8,” which signified the day. Claimant’s
argument is unavailing because, even if she were unable to distinguish the numbers
8 and 9, the notice also stated that the hearing would be taking place on “Monday.”
The inclusion of the day of the week should have cleared up any confusion.
Accordingly, Claimant’s failure to read the Notice of Hearing with care caused her
to miss the Referee’s hearing. The Board did not err in denying her request to
reopen the record.
4
Turning to the merits, we agree with the Board’s conclusion that
Claimant committed willful misconduct. Willful misconduct has been judicially
defined as, inter alia, a deliberate violation of an employer’s rule or policy.
Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 632
(Pa. 1976). The burden of proving willful misconduct is on the employer.
Cipriani v. Unemployment Compensation Board of Review, 466 A.2d 1102, 1105
(Pa. Cmwlth. 1983). Once an employer meets its burden, the burden shifts to the
claimant to show either that the rule is unreasonable or that the claimant had good
cause for violating the rule. County of Luzerne v. Unemployment Compensation
Board of Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).
In the matter sub judice, Employer met its burden with the testimony
of Linda Shannon. Shannon testified that on June 15, 2014, Claimant approached
a co-worker, grabbed the co-worker’s computer, and told the co-worker not to “get
pissy with her.” N.T. 5. This incident, which occurred in front of other employees
and patients, violated Employer’s conduct policy and constituted disqualifying
willful misconduct.
For these reasons, the Order of the Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Linda Stillitano, :
Petitioner :
:
v. : No. 2316 C.D. 2014
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 14th day of October, 2015 the order of the
Unemployment Compensation Board of Review dated October 30, 2014, in the
above-captioned matter is hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge