IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Krawetz, :

Petitioner :

 :

v. : No. 302 C.D. 2015

 : SUBMITTED: July 17, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE LEADBETTER FILED: November 3, 2015

Claimant, Joseph Krawetz, petitions pro se for review of an order of 

the Unemployment Compensation Board of Review (Board) that affirmed the 

decision of a referee denying him unemployment compensation benefits, 

concluding that his tardiness constituted willful misconduct under Section 402(e) 

of the Unemployment Compensation Law (Law).1 We affirm.

From November 2002 to August 2014, Claimant worked full-time as a 

yard attendant for Employer Cleveland Brothers Equipment at a final hourly rate of 

 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 

802(e).
2

$14.00. Referee’s September 30, 2014 Decision, Findings of Fact (F.F.) Nos. 1-3. 

Claimant had a history of tardiness and Employer had previously warned him 

about it and imposed a one-day suspension. Id., No. 9. On August 1, 2014, 

Claimant arrived at work at 8:30 a.m., one and one-half hours after his 7:00 a.m. 

start time. His alleged reason for this latest instance of tardiness was that he 

simply overslept. Id., Nos. 5-8. Employer discharged Claimant on August 6 due 

to his tardiness. Id., Nos. 3 and 4. Claimant applied for unemployment 

compensation benefits and the Scranton UC Service Center determined that he was 

ineligible. Claimant appealed and the referee held a September 2014 hearing 

where only Claimant appeared.2

At the hearing, Claimant testified that he overslept due to taking a 

muscle-relaxing medication. He did not, however, provide a doctor’s note or a 

copy of his prescription. In addition, his testimony contradicted his Internet Initial 

Claims form, where he averred that he simply overslept and did not appear until an 

hour and a half after his scheduled start time. Id. at 2. When the referee asked 

Claimant about his failure to mention the prescription medication on the claims 

form, Claimant responded: “I really didn’t think about it, you know, when I was 

filling out the internet form.” Certified Record (C.R.), Item No. 10, September 29, 

2014 Hearing, Notes of Testimony (N.T.) at 5. In considering the contradiction in 

his explanations, the referee determined that the claims form was more accurate 

than Claimant’s subsequent testimony. Referee’s September 30, 2014 Decision at 

2. Accordingly, noting Claimant’s acknowledgement at the hearing that he filled 

 

2

The record reflects that the referee denied Employer’s request to participate in the hearing 

by telephone. Certified Record (C.R.), Item Nos. 9 and 10, Employer’s Request to Testify via 

Phone and September 29, 2014 Hearing, Notes of Testimony (N.T.) at 2.
3

out the claims form and that Employer had previously warned him about 

attendance and tardiness, the referee determined that willful misconduct was 

established. Further, he concluded that Claimant failed to show good cause for his 

latest episode of tardiness. Claimant appealed to the Board, which affirmed based 

on the entire record. Adopting and incorporating the referee’s findings and 

conclusions, the Board also specifically “discredit[ed] the claimant’s testimony 

that he overslept due to taking a muscle relaxing medication.” Board’s January 27, 

2015 Decision at 1. Claimant’s petition for review followed.

Section 402(e) provides, in pertinent part, that an employee shall be 

ineligible for compensation for any week “[i]n which his unemployment is due to 

his discharge or temporary suspension from work for willful misconduct connected 

with his work . . . .” The term “willful misconduct” has been defined to include: 

1) the wanton and willful disregard of the employer’s interests; 2) the deliberate 

violation of rules; and 3) the disregard of standards of behavior which an employer 

can rightfully expect of its employee. Glatfelter Barber Shop v. Unemployment 

Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 2008). Once an employer 

satisfies its prima facie case, the burden shifts to the claimant to demonstrate good 

cause for his conduct. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 

1162 (Pa. Cmwlth. 2012). The claimant has good cause if his action “is justifiable 

or reasonable under the circumstances.” Frumento v. Unemployment Comp. Bd. of 

Review, 351 A.2d 631, 634 (Pa. 1976).

In addition, even in the absence of a detailed termination policy 

regarding tardiness or specific notice that the next instance will result in discharge, 

tardiness may constitute willful misconduct where it is habitual and an employee is 

provided with notice that future episodes are unacceptable. Ellis v. Unemployment 
4

Comp. Bd. of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013). An employer has a 

right to expect that its employees report to work when scheduled and arrive on 

time. Id. Further, notwithstanding an employer’s absence at the referee’s hearing, 

a claimant may, by his own testimony, meet an employer’s burden of establishing 

willful misconduct. Moore v. Unemployment Comp. Bd. of Review, 578 A.2d 606, 

608-09 (Pa. Cmwlth. 1990).

In the present case, the Board determined that Claimant’s conduct 

constituted willful misconduct where his claim form contradicted his testimony at 

the hearing, he failed to bring a doctor’s note or a prescription to the hearing, his 

testimony that he overslept due to the medication was discredited and he 

acknowledged Employer’s previous warnings and disciplinary action from earlier

episodes of tardiness. We agree and, therefore, conclude that the record supports a 

legal determination of willful misconduct.3 We turn now to Claimant’s arguments 

regarding his alleged good cause for his tardiness.

Claimant maintains that he had good cause for his tardiness, alleging

as follows: 1) after twelve years of employment, he had only three episodes of 

tardiness; 2) Employer’s failure to appear at the hearing prevented him from 

establishing that other employees were tardy with no repercussions; 3) after being 

prescribed medication, he took the proper steps to notify Employer; 4) he was 

unfamiliar with filing an online application for unemployment compensation

benefits, thus explaining his failure to include his medication on the claims form as 

an excuse for his tardiness; and 5) he cured his failure to include the medication on 

 

3 Whether a claimant’s actions constitute willful misconduct is a question of law over which 

we exercise plenary review. Yost v. Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1162 

(Pa. Cmwlth. 2012).
5

the claims form by raising it at the hearing and by attaching what purports to be a 

doctor’s note and information regarding a prescription medication as appendices to 

his appellate brief. Claimant’s arguments are without merit.

Regarding the alleged number of times that Claimant was tardy for 

work, we note that even a single, knowing violation of a known work rule may be

sufficient to constitute willful misconduct. Maxwell v. Unemployment Comp. Bd. 

of Review, 423 A.2d 430, 432 (Pa. Cmwlth. 1980). Here, the record reflects that 

Claimant admitted that he had been late at least three times and that Employer had 

reprimanded him with a write-up. Claimant’s Brief at 8 and C.R., Item No. 10, 

September 29, 2014 Hearing, N.T. at 5. Employer’s documentation is consistent 

with Claimant’s acknowledgement, reflecting that it had issued previous warnings 

and imposed a one-day suspension in April 2014. C.R., Item No. 3, Employer 

Separation Information.4

Further, notwithstanding Employer’s absence at the hearing, Claimant

had the burden to prove that Employer had been selectively applying its tardiness 

rule. See Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 A.2d 

970, 974 (Pa. Cmwlth. 2009) (disparate treatment of employees who engaged in 

similar conduct is an affirmative defense for claimants who have engaged in 

willful misconduct). At the end of the hearing, however, Claimant advised the 

referee that he had no other witnesses and did not ask for a continuance in order to 

secure the testimony of any witnesses regarding disparate treatment. C.R., Item 

No. 10, September 29, 2014 Hearing, N.T. at 7.

 

4 At the September 29, 2014 hearing, the referee admitted Employer’s separation 

information into evidence without objection.
6

As for any proper steps that Claimant may have taken to notify 

Employer that he was on medication, such notification, without more, does not 

vitiate Claimant’s violation of a known work rule or constitute good cause for 

violation of that rule. In that regard, we emphasize that the Board rejected as not 

credible Claimant’s testimony that he overslept due to taking a muscle-relaxing 

medication. Instead, the Board adopted the referee’s finding that the reason that 

Claimant proffered on his claims form, that he simply overslept, was the more 

accurate explanation for his tardiness. The Board is the ultimate fact finder, 

“empowered to resolve conflicts in evidence, to determine the credibility of 

witnesses, and to determine the weight to be accorded evidence.” Oliver v. 

Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). 

Accordingly, we cannot disturb its credibility determination on appeal. Id.

Moreover, regarding his unfamiliarity with filling out the online claim 

form as a justification for not including his medication as an excuse for his 

tardiness, we note Claimant’s statement at the hearing to the effect that he simply 

did not consider it when filling out the form. Unfamiliarity with filling out a form 

is somewhat different than simply not thinking of something when filling out a 

form. In any event, the Board weighed the conflicting evidence regarding 

Claimant’s reason for his tardiness and found the form to be more accurate than his 

subsequent self-serving testimony at the hearing. As noted, it is within the Board’s 

purview to resolve conflicts in evidence and to determine the weight to be 

attributed to it. Id.

Finally, Claimant’s attempt to cure his failure to include on his claims 

form a reference to any alleged medication as an excuse for his tardiness also must 

fail. Regarding Claimant’s failure to bring items in support of his position to 
7

hearing, the referee stated: “Well, sir, today’s the date, time and place of the 

hearing.” C.R., Item No. 10, September 29, 2014 Hearing, N.T. at 5. The referee 

further commented that Claimant had two weeks’ notice of the hearing date. Id. In 

any event, Claimant’s attachments to his appellate brief are dehors the certified 

record and we may not consider them on appeal. Croft v. Unemployment Comp. 

Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995).

Accordingly, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Krawetz, :

Petitioner :

 :

v. : No. 302 C.D. 2015

 :

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 3rd day of November, 2015, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge