A. Kuna v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alexander Kuna, :
:
Petitioner :
:
v. : No. 135 C.D. 2016
: Submitted: August 11, 2017
Unemployment Compensation :
Board of Review, :
:
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: October 31, 2017

Alexander Kuna (Claimant) petitions for review of the December 28,
2015 order of the Unemployment Compensation Board of Review (Board), which
held that Claimant is ineligible for unemployment compensation under Section
402(e) of the Unemployment Compensation Law (Law).1 We affirm.
Claimant worked as a laborer for Primrose Landscaping LLC
(Employer) from April 8, 2014, until August 28, 2015, when Employer discharged
Claimant for leaving work early. The local service center determined that Claimant

1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides that an employee shall be ineligible for compensation for any
week in which her unemployment is due to her discharge or temporary suspension from work for
willful misconduct connected with her work.
was eligible for benefits, and Employer appealed. A referee held a hearing on
October 29, 2015, at which both parties participated without the benefit of counsel.
Tim Primrose, Employer’s owner, testified that Employer’s policy
requires employees to notify Employer by 6:45 a.m. if they will need to leave work
that day for any reason. Primrose stated that on August 28, 2015, Claimant
approached him about 90 minutes into the day and said that he had to leave early to
go to Urgent Care. Primrose stated that employees start work at 7:00 a.m. and have
an open ending, depending on when the job is completed. He explained that the
work crew traveled together in one vehicle and said that he denied Claimant
permission to leave early because Claimant had not given Employer notice at the
beginning of the day, when other arrangements could have been made. Primrose
stated that the crew returned from the job site early, without completing the work,
so that Claimant could go to Urgent Care.
Claimant acknowledged that Primrose discharged him, but he denied
that he left work early. He said that the crew typically finished work at 2:30 or 3:00
p.m., and he had planned to go to an urgent care center at 4:00 that day because he
had excruciating back pain. Claimant testified that he advised Dave, his supervisor,
between 6:30 a.m. and 6:45 a.m. that he planned to see the doctor. He said that Dave
did not give him a definitive answer, but the employees decided to end work for the
day, before the job was completed, so Claimant could go to the doctor. Claimant
acknowledged that he might have been able to go to an urgent care center after 4:00,
or on the following day, which was a Saturday.
The referee reversed the local service center’s determination and held
that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant
appealed to the Board, which credited Primrose’s testimony and rejected Claimant’s

2
contrary testimony. Based on those credibility determinations, the Board issued the
following Findings of Fact:

1. [Claimant] was last employed as a laborer by
[Employer] from April 8, 2014, at a final rate of pay of
$12.50 an hour and his last day of work was August 28,
2015.

2. [Claimant] was or should have been aware that
[Employer] required an employee to notify it in advance if
he had a doctor’s appointment.

3. [Claimant] was or should have been aware that if he
needed to leave work for any reason, he was to inform
[Employer] by 6:45 a.m.

4. On August 28, 2015, [Claimant] decided he would
walk-in [sic] to an urgent care clinic at 4:00 p.m.;
[Claimant] did not make an appointment.

5. On or around 8:00 a.m., while [Claimant] was at the
jobsite, the owner appeared and [Claimant] informed him
that he would be leaving early to go to urgent care.

6. The owner told [Claimant] he could not leave early
because [Claimant] did not inform him in advance, the job
needed to be completed, and no one could take [Claimant]
back.

7. Around 3:00 p.m., the owner learned that [Claimant]
had left early to go to the urgent care clinic and the job was
not completed.

8. [Claimant] was discharged for leaving early without
completing his duties after he was told not to leave by the
owner.
Board’s Findings of Fact. Nos. 1-8. Citing Primrose’s credible testimony, the Board
determined that Claimant left early without permission. The Board specifically
discredited Claimant’s testimony and noted Claimant’s admissions that he did not

3
have an appointment scheduled and could have gone to the urgent care clinic on
Saturday when he was not working. Accordingly, the Board affirmed the referee’s
decision and held that Claimant was discharged for willful misconduct, rendering
him ineligible for benefits under Section 402(e) of the Law.
On appeal to this Court,2 Claimant argues that: he had good cause for
leaving work early; the Board’s findings are not supported by substantial evidence;
and the Board should have evaluated his eligibility for benefits under Section 402(b)
of the Law 43 P.S. §802(b) (related to voluntary termination of employment).
Preliminarily, we note that while the Law does not define the term
willful misconduct, our courts have defined it as including: an act of wanton and
willful disregard of the employer’s interests; a deliberate violation of the employer’s
rules; a disregard of a standard of behavior which the employer has the right to
expect; or negligence rising to the level of an intentional disregard of the employer’s
interests or the employee's duties and obligations. Johns v. Unemployment
Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). An
employer bears the burden of proving willful misconduct. Id. at 1010. Once the
employer meets its burden, the burden then shifts to the claimant to demonstrate
good cause for his actions. Id. Whether a claimant’s actions rose to the level of
willful misconduct is a question of law reviewable by this Court. Guthrie v.
Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth.
1999).

2
Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124,
1127 n.4 (Pa. Cmwlth. 2010).

4
 Citing Frumento v. Unemployment Compensation Board of Review,
351 A.2d 631 (Pa. 1976),3 Claimant first argues that the Board erred in failing to
determine that his excruciating back pain was good cause for his leaving work early.
However, while Claimant testified that he wanted to go to a medical clinic because
he was in excruciating pain, he did not state that he informed Primrose or his
supervisor that his pain was excruciating or that his need was urgent, and there is no
evidence that he complained of pain while he worked during the day. Moreover, the
Board specifically discredited Claimant’s testimony. The Board is the ultimate fact-
finder in unemployment proceedings, empowered to determine the credibility of
witnesses and resolve conflicts in evidence. Curran v. Unemployment
Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). The
Board’s findings are conclusive on appeal where they are supported by substantial
evidence. Id.
Claimant contends that the Board’s findings of fact are not supported
by substantial evidence. In this regard, he complains that the Board failed to provide
any rationale for its credibility determinations or address the inconsistencies between
the testimony of Claimant and Primrose. However, the Board did address the
inconsistencies in testimony by way of its credibility determinations, and the Board’s

3
In Frumento, the Supreme Court emphasized the remedial nature of the Law and held that
a reviewing court must consider the reason proffered by the employee for his conduct, explaining
that:

where the action of the employee is justifiable or reasonable under
the circumstances it can not be considered wilful misconduct since
it can not properly be charged as a wilful disregard of the employer's
intents or rules or the standard of conduct the employer has a right
to expect.

Id. at 634.
5
credibility determinations “are not subject to re-evaluation” on appeal. Peak v.
Unemployment Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985).
. Finally, Claimant argues that the Board erred in failing to consider his
eligibility for benefits as a voluntary quit under Section 402(b) of the Law. Claimant
did not raise this argument before the Board and, therefore, it is waived for purposes
of appeal. Pa. R.A.P. 1551(a). Moreover, Claimant testified that Primrose fired him
on August 28, 2015. N.T. at 5-6.
Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge

Judge Cosgrove dissents and wishes to be so noted.

6
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alexander Kuna, :
:
Petitioner :
:
v. : No. 135 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
:
Respondent :

ORDER

AND NOW, this 31st day of October, 2017, the order of the
Unemployment Compensation Board of Review, dated December 28, 2015, is
affirmed.

__________________________________
MICHAEL H. WOJCIK, Judge