IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chartiers Community Mental Health :
and Retardation Center, :
:
Petitioner :
:
v. : No. 1677 C.D. 2015
: Submitted: February 5, 2016
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY
SENIOR JUDGE COLINS FILED: March 10, 2016
Chartiers Community Mental Health and Retardation Center
(Employer) petitions for review of the August 13, 2015 order of the
Unemployment Compensation Board of Review (Board) concluding that Susan R.
Flynn (Claimant) was not ineligible for unemployment compensation benefits
under Section 402(e) of the Unemployment Compensation Law1 (Law) because
Employer failed to demonstrate that Claimant’s conduct amounted to willful
misconduct under the Law. We affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
Claimant filed an initial internet claim for unemployment
compensation on March 15, 2015, and listed the reason she was given for her
discharge as “taking action without authorization.” (Record Item (R. Item) 2,
Claimant Separation Information.) Employer submitted separation information in
which it stated that Claimant was discharged for the manner in which she handled
the revision of Employer’s vehicle maintenance policy and misrepresentations
Claimant made during an investigation of her revision of that policy. (R. Item 3,
Employer Separation Information.) The Department of Labor and Industry
(Department) conducted an oral interview with Claimant on April 3, 2015. (R.
Item 4, Oral Interview.) On April 6, 2015, the Department issued a Notice of
Determination finding Claimant was not ineligible for unemployment
compensation because her conduct did not amount to willful misconduct under the
Law. (R. Item 5, Notice of Determination.) Employer appealed the Department’s
Notice of Determination and a hearing was subsequently scheduled before the
Referee on May 14, 2015. (R. Item 6, Employer’s Appeal to the Referee; R. Item
8, Notices of Hearing w/ Continuance Information; R. Item 10, Hearing
Transcript.)
On May 20, 2015, the Referee issued a decision and order finding
Claimant ineligible for unemployment compensation because during the
investigation of Claimant’s handling of the revision of Employer’s vehicle
maintenance policy, Claimant had deviated from the standard of behavior her
Employer had a right to expect by falsely stating that no one had told her the policy
was working well and no revisions were needed. (R. Item 11, Referee Decision
and Order.)
2
On May 26, 2015, Claimant submitted an appeal of the Referee’s
decision to the Board via electronic mail (email). (R. Item 12, Claimant’s Petition
to Appeal.) The Board responded that same day via email stating that it was
unable to open the secure message box in Claimant’s email and requested that
Claimant resend the information contained in the secure message box. (Id.)
Claimant resubmitted by facsimile her request to appeal the Referee’s order, to file
a brief with the Board, and to receive a copy of the hearing transcript and exhibits
and the facsimile was marked as received by the Board on June 12, 2015. (Id.) On
June 30, 2015, the Board granted Claimant’s request to file a brief with the Board
and forwarded Claimant a copy of the hearing transcript and exhibits. (R. Item 13,
Board’s Response/ Permission to Appeal.) Claimant and Employer both submitted
briefs for the Board’s review, with Employer arguing, inter alia, that Claimant’s
appeal was untimely and should be rejected by the Board without a review of the
merits. (R. Items 14, 16, 19, Employer’s and Claimant’s Briefs.)
On August 13, 2015, the Board issued a decision and order finding
Claimant’s appeal was timely and that Claimant was not ineligible to receive
unemployment compensation due to willful misconduct. (R. Item 20, Board’s
Decision and Order.) In its decision, the Board made the following findings of
fact:
2. In December 2014/January 2015, the chief executive officer (CEO)
assigned [Claimant] seven projects, each with varying deadlines. One
project was to reformat and update the 84 fiscal policies and
procedures with a deadline of March 1, 2015.
3. One of the 84 policies was the “Fleet Management—Routine
Maintenance” policy, which had been last updated in January 2014.
3
4. That policy required the drivers of the [Employer’s] fleet vehicles
to make arrangements for the vehicles to be serviced. The accounts
payable payroll accountant (accountant) and the chief operating
officer of recovery support services (COO), who managed the fleet,
normally coordinated the servicing with a local garage.
5. When reviewing and updating the vehicle maintenance policy,
[Claimant] found an old handwritten note from the COO questioning
whether [Employer] should be using “billable staff” to perform
routine maintenance, and a handwritten note from the CEO
questioning whether the policy was what they had agreed to.
6. [Claimant] thought it would be more efficient to have the drivers
take the vehicles to a local oil change shop for oil changes every six
months, but leave the other servicing to the local garage.
7. On February 26, 2015, [Claimant] contacted the COO and
informed him that she was revising the policies and procedures related
to agency vehicles. She expressed that the accountant did not have
time to take vehicles to the garage. The COO told [Claimant] that it
was difficult for the agency employees to do so as well but “we are
doing the best we can” and “if there are issues...[they] can work them
out.” He also noted that the local garage was very accommodating.
The COO told [Claimant] that “we make it work and that it is not a
frequent occurrence.” He also asked to be “consulted as needed.”
8. On February 27, 2015, [Claimant] contacted the accountant to
discuss the policy, and [Claimant] expressed that she thought the
policy should be changed. She had the accountant call around to local
shops to see if they could get a corporate discount for oil changes.
The accountant told [Claimant] that he thought they should continue
with the local garage. [Claimant] told the accountant that she wanted
to have a meeting with him and the COO, but the accountant told her
that she had to contact his boss.
9. [Claimant] revised the vehicle maintenance policy to reflect that
the vehicles be taken every six months for a 15-minute oil change and
an 18 point check at a local oil shop.
10. On February 27, 2015, [Claimant] sent an e-mail to the COO with
her proposed changes to the policy and asked for his input.
4
11. The COO was not in the office at that time and did not respond to
[Claimant].
12. At 3:23 a.m, on March 2, 2015, [Claimant] sent an e-mail to the
CEO with a link to the public folders with her revisions to the 84
policies, including her proposed changes to the routine maintenance
policy.
13. On March 2, 2015, the COO complained to the CEO that the prior
policy was being changed without his knowledge or input.
14. On March 3, 2015, the CEO and the HR officer met with
[Claimant] and asked if she had input from the COO or accountant in
the changes to the policy. [Claimant] indicated that she had not
spoken to the COO, but did send him a copy of the changes in an e-
mail but had not heard back from him. They told [Claimant] that
others were not happy with the changes, and [Claimant] said that
surprised her and that “she must not have asked the right questions to
say that the policy was actually working fine.”
15. Policies can only be implemented with the approval of the CEO
and/or board of directors and this proposed change to the policy was
never implemented.
16. On March 13, 2015, [Employer] terminated [Claimant’s]
employment for taking it upon herself to revise a policy that had been
revised less than a year prior and for materially misrepresenting the
details involved in those changes during the March 3, 2015, meeting.
17. The final date to appeal the Referee’s decision was June 4, 2015.
18. On May 26, 2015, [Claimant’s] attorney e-mailed an appeal to the
Board, which was received by the Board.
19. The Board informed [Claimant’s] attorney via e-mail that it was
unable to open the secure message box in the e-mail and to provide
the information either as an attachment or in the body of the e-mail.
The Board did not provide a deadline.
20. On June 12, 2015, [Claimant’s] attorney faxed to the Board a
copy of the May 26, 2015, e-mail with the secure content.
5
(Id., Findings of Fact (F.F.) ¶¶2-20.) In addition to its findings of fact, the Board
engaged in a lengthy discussion detailing its reasoning for concluding that (i)
Claimant’s appeal was timely and (ii) that Claimant had not engaged in willful
misconduct. (Id., Discussion.) Addressing the issue of timeliness, the Board
concluded that Claimant’s appeal was timely because “[a]lthough the e-mail was
unable to be read by the Board’s staff, it is clear that [Claimant’s] attorney filed an
appeal on [Claimant’s] behalf on May 26, 2015, within the appeal deadline,
thereby preserving the appeal date. The [Claimant’s] attorney followed up with an
unsecured copy of the e-mail.” (Id., Discussion at 3.) Next, the Board found
Claimant’s testimony to be credible, resolving all conflicts in the testimony in
Claimant’s favor, and found that the testimony from Employer’s HR officer was
cryptic and the testimony from Employer’s COO was “disingenuous.” (Id.,
Discussion at 4.) After thoroughly reviewing the record, the Board concluded that
“[Claimant’s] conveyance of her perception of [her and the COO’s] conversation
was not an act of dishonesty toward the [Employer].” (Id.) Accordingly, the
Board reversed the Referee and granted Claimant unemployment compensation
benefits. Employer appealed.
Before this Court, Employer argues that Claimant’s appeal to the
Board was untimely and that the Board erred in concluding that Employer did not
meet its burden to demonstrate that Claimant’s conduct amounted to willful
misconduct under the Law. 2
2
Our review of the Board’s decision is limited to determining whether necessary findings of fact
are supported by substantial evidence, whether an error of law was committed or whether
constitutional rights were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704; Davila v. Unemployment Compensation Board of Review, 926 A.2d 1287, 1289 n.3 (Pa.
Cmwlth. 2007). Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. On Line Inc. v. Unemployment Compensation Board
of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
6
In support of its argument that the Board erroneously permitted
Claimant to file an untimely appeal, Employer relies upon Subsection 4 of 34 Pa.
Code § 101.82(b), which addresses appeals filed by email and provides:
Electronic transmission other than fax transmission. The date of filing
is the receipt date recorded by the Department appeal office or the
Board’s electronic transmission system, if the electronic record is in a
form capable of being processed by that system. A party filing by
electronic transmission shall comply with Department instructions
concerning format. A party filing an appeal by electronic
transmission is responsible for using the proper format and for delay,
disruption, interruption of electronic signals and readability of the
document and accepts the risk that the appeal may not be properly or
timely filed.
Id.; see also 34 Pa. Code § 101.102 (providing that the regulations applicable to
appeals from the Department and from a Referee’s decision are applicable to
appeals to the Board). Employer contends that Claimant was advised via email on
May 26, 2015 that her appeal was not readable and that the documents Claimant
later submitted to the Board via facsimile were not stamped as received by the
Board until June 12, 2015, well beyond Claimant’s appeal date. Employer argues
that because Claimant’s email was not time-stamped by the Board as received, the
date of filing for Claimant’s appeal is June 12, 2015, and therefore, the appeal is
untimely.
Employer misconstrues the Board’s regulation. Subsection 4 of 34
Pa. Code § 101.82(b), provides that the date of filing is “the receipt date recorded
by the Department appeal office or the Board’s electronic transmission system, if
the electronic record is in a form capable of being processed by that system.” Id.
The email sent by Claimant’s counsel was recorded by the Board’s electronic
7
transmission system on May 26, 2015. (R. Item 20, Board’s Decision and Order,
F.F. ¶18.) While Claimant accepted “the risk that the appeal may not be properly
or timely filed,” the Board responded on May 26, 2015, alerting Claimant that the
appeal had been received and instructing Claimant to resend the unreadable section
of the email. Id.; (R. Item 20, Board’s Decision and Order, F.F. ¶¶18-19). The
Board did not fail to receive the appeal or reject it, nor did it inform Claimant that
the additional information must be resent within a specific time frame. (R. Item
20, Board’s Decision and Order, F.F. ¶¶18-19).
In addition to Subsection 4 of 34 Pa. Code § 101.82(b), Employer
cites a number of cases by this Court, both published and unpublished,3 to support
its argument that an email received by the Board in an unreadable format is
insufficient to preserve Claimant’s statutory appeal date. The precedent cited by
Employer in support of its argument, however, is in accord with the Board’s
conclusion that Claimant’s appeal was timely.
In Mountain Home Beagle Media v. Unemployment Compensation
Board of Review, 955 A.2d 484 (Pa. Cmwlth. 2008), the employer asserted that it
faxed an appeal on August 27, 2007, while the Board found that the Department
first received the appeal by fax on September 6, 2007. Id. at 486. This Court
rejected the employer’s request to appeal nunc pro tunc on the basis that
employer’s own fax machine showed a confirmation that the facsimile was sent on
August 27, 2007. Id. at 487. Instead, we concluded that “the date of filing is the
date that it is acknowledged as received by a representative of the Department or
the Board not the date of the fax.” Id. (internal citations omitted).
3
See Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code § 69.414 (an
unreported Commonwealth Court panel decision issued after January 15, 2008 may be cited for
its persuasive value).
8
Likewise, in Roman-Hutchinson v. Unemployment Compensation
Board of Review, 972 A.2d 1286 (Pa. Cmwlth. 2009), the claimant asserted that
she appealed the Referee’s decision to the Board via a June 30, 2008 email,
however, the Board did not receive the email and instead first became aware of
claimant’s appeal in a facsimile received on July 17, 2008. Id. at 1288. This Court
concluded that “even if [c]laimant emailed her appeal before the appeal deadline, it
was untimely because it was not received by the UC authorities until after the
deadline. Consequently, [c]laimant’s argument fails. Further, the regulation clearly
contemplates malfunction in the email delivery system and places the resulting risk
of an untimely filing on the [c]laimant.” Id. at 1289 (internal citations omitted).
In McClean v. Unemployment Compensation Board of Review, 908
A.2d 956 (Pa. Cwmlth. 2006), a claimant asserted that his counsel emailed a timely
appeal to the Board on January 10, 2006, but because counsel did not receive a
response, counsel also mailed a copy of the email to the Board on January 24,
2006; the Board did not receive the mailed appeal until one day after the filing
deadline and the email was not received until January 27, 2006. Id. at 957. This
Court rejected the claimant’s assertion that he should have been given more leeway
because he was not aware until February 2, 2006, after the statutory appeal period,
that the board did not receive his appeal. Id. at 958. Instead, we concluded that
under Subsection 4 of Section 34 Pa. Code § 101.82(b), a claimant assumes the
risk that comes with filing an appeal by email and that is incumbent on the
claimant to “ascertain whether the Board had received [the claimant’s] e-mail
appeal before, rather than after, the statutory time period for appealing the referee’s
decision had passed.” 908 A.2d at 959.
9
Unlike the employer in Mountain Home Beagle Media and the
claimants in Roman-Hutchinson and McClean, the Claimant in the instant matter
was informed by a representative of the Board that her appeal was received prior to
the expiration of the statutory appeal period. The Board’s confirmation of receipt
preserved May 26, 2015 as Claimant’s filing date. Neither the Board’s regulation
nor this Court’s precedent is to the contrary, rather the language of the regulation
and our cases support the Board’s conclusion that Claimant’s appeal was timely.
Accordingly, Claimant did not request to file a late appeal and such relief was not
granted by the Board because Claimant’s appeal was filed within the statutorily
mandated appeal period.
Employer also argues that if this Court concludes that Claimant’s
appeal was timely filed, we must still conclude that the Board erred in reviewing
the merits because the unreadable portion of Claimant’s email identified the
substantive issues raised on appeal and the email, absent the unreadable content,
was insufficient to preserve any issues for the Board’s review.
Subsection 4 of 34 Pa. Code § 101.82(b) provides that an employer or
a claimant accepts the risk that an electronic transmission, including an email, may
not be received once it is sent because of format, disruption, and any number of
issues that may arise due to the use of electronic transmission; a risk, however, is
not a certainty. As long as the electronic transmission is received prior to the
expiration of the appeal period, the regulation affords the Board discretion to
instruct the employer or claimant on how to proceed if there is an issue with
readability. This is not unlike this Court’s own internal operating procedures,
which direct the Chief Clerk to time-stamp written communication that evidences
an intention to appeal with the date of receipt and to advise the party by letter of
10
the procedures necessary to perfect an appeal, as well as the time within which the
party must file a fully conforming petition for review in order to preserve the date
of receipt of the original non-conforming request to appeal. See Commonwealth
Court Internal Operating Procedure No. 211, 210 Pa. Code. § 69.211 (Petition for
Review; Clarification). The Board acted fully within its discretion in directing
Claimant to resend the unreadable segments of her email once it had received her
appeal.
Employer’s argument that two of our unpublished memorandum
opinions should persuade this Court otherwise is unavailing. In the memorandum
opinions cited by Employer, one claimant simply stated that she wished to appeal
and the other that the benefits belonged to him because he worked hard.4 The
claimants in the opinions cited by Employer did not receive instructions from the
Board that the appeals were received but contained unreadable segments, did not
follow up on those instructions by resending information that clearly identified the
basis for the appeals, and did not file briefs with the Board. The unpublished
memorandum opinions cited by Employer are not analogous to the facts in the
instant matter. To preserve an issue for the Board’s review, a claimant must
provide “some indication, however inartfully stated, of precisely what error(s)
occurred and where the tribunal should focus its attention.” Merida v.
Unemployment Compensation Board of Review, 543 A.2d 593, 595 (Pa. Cmwlth.
1988). Claimant did so here. Had Claimant failed to follow the Board’s
instructions and relied solely upon the readable sections of her May 26, 2015
4
See Dorbach v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 2225 C.D.
2012, filed July 25, 2013), 2013 WL 3866515 at *2, slip op. at 4; Johnson v. Unemployment
Compensation Board of Review, (Pa. Cmwlth. No. 1134 C.D. 2010, filed July 22, 2010), 2010
WL 9511364 at *2 & n.4, slip op. at 4 & n.2.
11
email, the unpublished decisions cited by Employer would carry more weight and
our decision might be different, but those facts are not before us.
Addressing the substantive issues in the Board’s opinion and order,
Employer argues that it demonstrated by substantial evidence that Claimant
committed willful misconduct under the Law and that the Board erred in
concluding that Employer failed to meet its burden. Although Employer attempts
to frame its argument as a challenge to findings of fact that are not supported by
substantial evidence, Employer’s argument hinges on this Court accepting as
credible evidence that the Board specifically rejected as incredible. However, it is
well-settled that the Board is the ultimate finder of fact, empowered to determine
credibility, and weigh and resolve conflicts in the evidence. Peak v.
Unemployment Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985);
Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa.
Cmwlth. 2008). This Court’s review of a decision by the Board does not permit it
to reweigh the evidence or substitute its own findings for those made by the Board.
Peak, 501 A.2d at 1388; Chapman v. Unemployment Compensation Board of
Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). Accordingly, Employer’s
argument is without merit and this Court will not reweigh the testimony of record
to find that the testimony of Employer’s witnesses was credible and sufficient
evidence to carry its burden under the Law.
The order of the Board is affirmed.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Chartiers Community Mental Health :
and Retardation Center, :
:
Petitioner :
:
v. : No. 1677 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW this 10th day of March, 2016, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge