IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kerry S. Kramer, :

Petitioner :

:

v. : No. 2276 C.D. 2015

: Submitted: June 10, 2016

Unemployment Compensation :

Board of Review, : 

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: August 25, 2016 

Petitioner Kerry S. Kramer (Claimant) petitions for review of an order 

of the Unemployment Compensation Board of Review (Board). The Board 

affirmed an Unemployment Compensation Referee’s (Referee) decision denying 

Claimant unemployment compensation benefits pursuant to Section 402(e) of the 

Unemployment Compensation Law (Law),1because Claimant engaged in willful 

misconduct without good cause. For the reasons set forth below, we affirm. 

Claimant applied for unemployment compensation benefits after 

being discharged from his employment as a motor coach operator for Trans-Bridge 

 

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, in part, that a claimant shall be ineligible for 

compensation for any week in which the claimant’s unemployment is due to “willful misconduct 

in connection with his work.”
2

Lines, Inc. (Employer). (Reproduced Record (R.R.) at 2a.) Claimant was 

discharged for his involvement in a physical altercation with a passenger. (R.R.

at 2a.) The Allentown UC Service Center (Service Center) issued a determination

finding Claimant eligible for benefits, which Employer subsequently appealed. 

(R.R. at 17a.) 

A Referee conducted a hearing on September 15, 2015. (R.R. at 7a.) 

The sole issue on appeal was whether Claimant’s employment was terminated for 

willful misconduct in connection with his work. (R.R. at 9a.) The Referee made 

the following relevant findings of fact:

1. The employer’s union contract requires employees 

to have a hearing before they are discharged unless 

the discharge is for violent behavior. 

2. The claimant was or should have been aware of his 

union contract. 

3. On July 6, 2015, the claimant was driving a 

passenger bus from Pennsylvania to New Jersey. 

4. The claimant became concerned about the 

behavior of some of his passengers. 

5. The claimant stopped his bus on the New Jersey 

Turnpike and told the passengers to quiet down.

6. The claimant did not allow the passengers to 

explain a problem one of the passengers 

experienced and repeatedly told the passengers to 

be quiet and threatened to call the police. 

7. The claimant began an argument with a female 

passenger and advanced toward the passenger until 

he was standing over the seated passenger and 

yelling at her.
3

8. The passenger pushed the claimant away from her 

and began to stand.

9. The claimant shoved the female passenger with 

both hands as she attempted to stand.

10. The female passenger was propelled back into her 

seat by the claimant’s shove. 

11. The other passengers loudly objected to the 

claimant’s conduct. 

12. The claimant contacted the police and ordered a 

few of the passengers off the bus.

13. The employer discharged the claimant for violently 

shoving a passenger.

(R.R. at 2a, 3a.)

The Referee rejected Claimant’s assertion that self-defense justified 

his actions as good cause for deviation from the workplace policy. (R.R. at 3a.) 

The Referee found that Claimant, instead of attempting to retreat from the situation 

or deescalate the conflict, advanced toward a female passenger and engaged in a 

face-to-face argument that led to exchanged shoves. (Id.) Additionally, the 

Referee dismissed Claimant’s accusations against the passengers alleging gang 

affiliations and drug usage, finding that such allegations are not supported by 

substantial evidence. (Id.) Accordingly, Claimant’s testimony was rejected as 

unreliable. (Id.)

Based on these findings, the Referee reversed the determination of the 

Allentown UC Service Center and concluded that Claimant was ineligible for 

benefits under Section 402(e) of the Law. (Id.) Claimant appealed to the Board, 

which affirmed the Referee’s decision and adopted the Referee’s findings and 

conclusions. (R.R. at 1.) Claimant now petitions for review with this Court. 
4

On appeal to this Court,2 Claimant first argues that the Referee’s 

findings of fact, as adopted and incorporated by the Board, were not supported by 

substantial evidence.

3

 Second, Claimant argues that the Board erred as a matter of 

law in failing to take into consideration the totality of the circumstances 

surrounding his altercation, specifically that the State Police were called on the day 

in question and they removed multiple passengers from the bus. 

We first address Claimant’s argument that the Board’s findings were 

not supported by substantial evidence. Substantial evidence is defined as relevant 

evidence upon which a reasonable mind could base a conclusion. Johnson v. 

Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In 

determining whether there is substantial evidence to support the Board’s findings, 

this Court must examine the testimony in the light most favorable to the prevailing 

party, giving that party the benefit of any inferences that can logically and 

reasonably be drawn from the evidence. (Id.) A determination as to whether 

substantial evidence exists to support a finding of fact can only be made upon 

examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of 

Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s findings of fact are conclusive 

on appeal so long as the record taken as a whole contains substantial evidence to 

support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). Even if 

 

2

This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§ 704.

3 While Claimant fails to specifically challenge any individual finding of fact, it appears 

that it is Claimant’s intent to challenge finding of fact number 8, in which Claimant was found to 

be the instigator of the altercation that resulted in his dismissal. 
5

evidence exists in the record that could support a contrary conclusion, it does not 

follow that the findings of fact are not supported by substantial evidence. Johnson 

v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).

The Board, affirming the determination of the Referee, found 

Claimant’s testimony that he felt threatened and acted in self-defense to not be 

credible. In an unemployment case, it is well settled that the Board is the ultimate 

fact finder and is, therefore, entitled to make its own determinations as to witness 

credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of 

Review, 501 A.2d 1383, 1386 (Pa. 1985). Questions of credibility are not subject 

to re-evaluation on judicial review. Id. at 1388. 

Here, a review of the record reveals that Employer presented 

substantial evidence to support the findings of the Referee. Employer offered 

video evidence of the physical altercation in which Claimant was involved. (R.R. 

at 3a.) The video of the altercation substantiated the findings that Claimant, while 

apparently in a verbal altercation, advanced towards a seated female passenger 

until he was standing over her, with words continuing to be exchanged. (R.R. at 

2a, 3a.) Thereafter, the seated passenger pushed Claimant away and attempted to 

stand. (Id.) The video then showed that Claimant shoved the passenger with both 

hands as she attempted to stand, causing her to be propelled back into her seat. 

(Id.) The video did not show any attempt on behalf of Claimant to retreat or 

deescalate the situation prior to engaging in the altercation. Because the Board did 

not find Claimant’s testimony claiming self-defense to be credible, we find that the 

Board’s findings of fact are supported by substantial evidence. 
6

Finally, we address Claimant’s argument that the Board erred in 

concluding that Claimant’s actions constituted willful misconduct4 when it failed to 

take into consideration the fact that police officers asked multiple passengers to get 

off the bus after the physical altercation. The extent of Claimant’s argument under 

this theory is as follows: “[i]t is difficult to justify the finding that the [Claimant] 

engaged in ‘willful misconduct,’ given the fact that the four disruptive passengers 

were removed from the Petitioner’s bus by the New Jersey State [P]olice. This 

included the female passenger who was causing all of the protests.” (Claimant’s 

Br. at 11.)

Section 402(e) of the Law provides, in part, that an employee shall be 

ineligible for compensation for any week in which “his unemployment is due to his 

discharge or temporary suspension from work for willful misconduct connected 

with his work.” The employer bears the burden of proving that the claimant’s 

unemployment is due to the claimant’s willful misconduct. Walsh v. 

Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The 

term “willful misconduct” is not defined by statute. The courts, however, have 

defined “willful misconduct” as:

(a) wanton or willful disregard for an employer’s 

interests; (b) deliberate violation of an employer’s rules;

(c) disregard for standards of behavior which an 

employer can rightfully expect of an employee; or 

d) negligence indicating an intentional disregard of the 

employer’s interest or an employee’s duties or 

obligations.

 

4 Whether or not an employee’s actions amount to willful misconduct is a question of law 

subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 

1205 (Pa. Cmwlth. 1981). 
7

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003). 

Once an employer has met its burden to establish willful misconduct, the burden 

then shifts to the claimant to show good cause as justification for the conduct 

considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of 

Review, 625 A.2d 112, 114 (Pa. Cmwlth. 2013). An employer seeking to prove 

willful misconduct by showing that the claimant violated the employer’s rules or 

policies must prove the existence of the rule or policy and that the claimant 

violated it. Walsh, 943 A.2d at 369. If the claimant can show good cause for the 

violation—i.e., “that the actions which resulted in the discharge were justifiable 

and reasonable under the circumstances,” then the Board should not conclude that 

an employee’s conduct constitutes willful misconduct. Id. 

First, we must determine whether Employer sustained its burden and 

established a prima facie case of willful misconduct. As previously stated, where 

an employee is discharged for a violation of the employer’s rule or policy, the 

employer must establish the existence of the policy and that the employee was 

aware of the policy. Williams v. Unemployment Comp. Bd. of Review, 926 A.2d 

568, 571 (Pa. Cmwlth. 2007). The Board found that Employer has a policy 

regarding violent behavior in the workplace,5and Employer discharged Claimant 

 

5 During the hearing, when asked to briefly summarize what the workplace policy 

contained in regards to violent behavior in the workplace, Employer said the following:

“An employee shall not be suspended, discharged, held off, have (inaudible) 

against him and now the first time in the hearing. The only exceptions to this 

would be theft, improper handling of fares, possession of firearms, use of 

intoxicants or narcotics before going on duty, and for violent behavior, 

harassment, or serious accidents. An officer of the union is to be notified as 

promptly as possible in these exceptions.”

(R.R. at 13a (emphasis added).)
8

for violating this policy. (R.R. at 1a.) Further, the Board found that Claimant was 

aware or should have been aware of the policy. (Id.) Although “violent behavior” 

is undefined in the Employer’s policy, the Board adopted the Referee’s finding that 

Claimant’s actions constituted such behavior. As such, the Board concluded that 

Employer sustained its burden to establish a prima facie case of willful 

misconduct.

Because Employer satisfied its burden to prove a prima facie case of

willful misconduct, the burden shifted to Claimant to prove he had good cause for 

deviating from the policy. To prove “good cause” the claimant must demonstrate 

that his actions were justifiable and reasonable under the circumstances. 

Walsh, 943 A.2d at 369. In support of his argument that he acted with good cause, 

Claimant urges the Court to consider the circumstances surrounding his actions. In 

this case, Claimant was concentrating on operating a motor vehicle on the New 

Jersey Turnpike when he was confronted with what Claimant saw as a potentially 

dangerous situation. Further, Claimant points to prior instances in which Claimant 

was concerned about gang sign graffiti on the side of buses and that Claimant had 

been contacted by a Drug Enforcement Administration (DEA) agent regarding 

drug trafficking and heroin use by some passengers. Claimant argues that based on 

a totality of the circumstances, including his prior experiences, it was reasonable 

for Claimant to feel threatened and act in self-defense. Thus, Claimant contends he 

had good cause for his actions. 

In prior jurisprudence involving the defense of good cause for an 

employee’s violent actions, this Court has previously held that good cause can be 

found notwithstanding the fact that a claimant made physical contact with another 

individual. See Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484 (Pa. 
9

Cmwlth. 2014); Peeples v. Unemployment Comp. Bd. of Review, 522 A.2d 680 (Pa. 

Cmwlth. 1987); Sun Oil Co. v. Commonwealth, 408 A.2d 1169 (Pa. 

Cmwlth. 1979). In each of the aforementioned cases, this Court held that the 

respective claimants were eligible for unemployment compensation benefits 

despite engaging in violent contact with another employee. 

In Peeples, the claimant was a forklift operator who was discharged 

from his employment after a physical altercation with another employee, in 

violation of a workplace policy prohibiting fighting. Peeples, 522 A.2d at 681. On 

the day of the incident, the claimant was in his forklift when another employee 

approached the claimant, wanting him to vacate the forklift so that the other 

employee could use it. Id. The claimant declined the other employee’s demand, at 

which time an argument ensued, culminating in an exchange of violent contact 

between the parties. Id. The claimant originally was determined to be ineligible 

for unemployment compensation benefits until this Court reversed the Board’s

decision, thereby granting the claimant benefits. Id. at 683. In doing so, this Court 

found that the claimant was not the aggressor, as the other employee accosted the 

claimant while he was inside his forklift with no ability to retreat. 

Id. at 682. Under these circumstances, the claimant “had no choice but to defend 

himself after words of solace and his own inactivity had proved ineffective.” Id. 

In this instance, it was found that self-defense was a necessity, as there was no 

other reasonable avenue for the claimant to follow given the exigencies of the 

circumstances. 

This Court finds Peeples to be distinguishable from the instant case, 

as not only did Claimant have ample opportunity to deescalate the situation, 

Claimant was also the main aggressor. When viewing the available video 
10

recordings of the incident between Claimant and the passenger, it becomes clear 

that the video corroborates the finding of violent contact, in violation of the 

workplace policy. What the video does not corroborate, however, is Claimant’s 

theory of self-defense. The video clearly shows Claimant advancing towards the 

passenger and engaging in a verbal argument, after which time the physical 

conflict occurred. At no point prior to Claimant shoving the passenger did 

Claimant attempt to deescalate the situation or retreat back to the driver’s seat. 

Further, after making the initial contact with the passenger, Claimant continued to 

advance towards the passenger and stand over her momentarily, before ultimately 

returning to the front of the bus to call for assistance. In regards to the physical 

altercation with the passenger, the Referee, finding the same as this Court, opined 

that:

The employer offered video evidence of a physical 

altercation between the claimant and a passenger. The 

claimant alleged that he felt threatened and that he 

shoved the passenger in self-defense. However, the 

claimant did not attempt to retreat from the situation or to 

deescalate the conflict. Instead, the claimant advanced 

toward a female passenger and engaged in a face-to-face 

argument that led to exchanged shoves. Under these 

circumstances, the claimant has not established that his 

conduct was self-defense and the claimant’s involvement 

in a physical altercation is disqualifying. 

(R.R. at 3a.) Claimant was not without ample opportunity to deescalate the 

situation. Where simple communication in an attempt to understand what the issue 

was could have served to alleviate the situation, Claimant played the role of 

aggressor, and threatened police involvement at a time when such was not 

necessary. In situations wherein the claimant is found to be the aggressor, a claim 
11

of self-defense simply cannot be supported. See Mula v. Commonwealth, 407 A.2d 

477 (Pa. Cmwlth. 1979).

A review of the record shows that neither the Referee nor the Board 

found Claimant’s recollection of the circumstances to be credible, and found 

Claimant’s testimony to be inconsistent with what actually happened. The Referee

reasoned as follows:

The claimant admitted that he had difficulty accurately 

recalling the events on June 6, 2015 and offered 

testimony that was inconsistent with the video and 

documentary evidence offered by the employer. Further, 

the claimant made baseless accusations against his 

passengers accusing them of using heroin and being 

affiliated with criminal gangs, none of which was 

supported by the evidence. Therefore, the claimant’s 

testimony is rejected as unreliable and the employer[’s]

witnesses’ testimony is accepted as credible.

(R.R. at 3a.) 

The Board, in adopting the Referee’s findings and conclusions, found 

Claimant’s testimony to be not credible and found the testimony of Employer’s 

witnesses to be credible. As previously stated, the Board is entitled to make such 

credibility determinations. Peak, 501 A.2d at 1386. Because the Board found 

Claimant’s testimony to be not credible, the Board did not err in not giving 

credibility to the totality of the circumstances as Claimant perceived them.

Accordingly, we affirm the order of the Board. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kerry S. Kramer, :

Petitioner :

:

v. : No. 2276 C.D. 2015

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 25th day of August, 2016, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

 

 P. KEVIN BROBSON, Judge