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 wil lful 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. Ref

eree’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

. H is alleged reason for t his la test 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 testifie d 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 I nternet Initial
C laim s form, where he averred that he simply overslep t 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 o n 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 acknowledge ment at the hearing that he filled

2 The record reflects that the referee denied Employer’s request to participate in the h e aring by telephone. Certified Record (C.R.), Item No s

. 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 a bout
attendance and tardiness , t he 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 . Adopt ing and incorporating the referee’s findings and
conclusion s , 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 f or 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 fr o m 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 right fully 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 circums tances.” 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 c onstitute willful misconduct where it is habitual and an employee is provided with notice that future episodes are unacceptable. Ellis v. Unemployment4

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. Unemplo yment Comp. Bd. of Review , 578 A.2d 606,
608

- 09 (Pa. Cmwlth. 19 90 ).

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 docto r’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

. W e 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 goo d 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 medi cation, he took the proper steps to notify Employer ; 4 ) h e was unfamiliar with filing an online application for unemployment compensation
benefits , thus explaining his failure to include his medication o n the claims form as an excuse for his tardiness; and 5) he cured his failure to include the medication o n

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 appendi ces to his appellate brief. Claimant’s ar guments are without merit.

Regarding the alleged number of times that Claimant was tardy for work, we note that e ven 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, t he 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, 2 014 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 ) (dispa ra te treatm e nt 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 A s for any proper steps that Claimant may have taken to notify Employer that he was on medic ation, such notification, without more, does not
vitiate Claimant’s v iolation 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 overs lept due to taking a muscle

- relaxing
medication

. In stead , 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. 2 010). Accordingly, we cannot disturb its credibility determination on appeal. Id

.

Moreover, r egarding 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 Cl aimant’s statement at the hearing to the effect that he simply
did not consider it when filling out the form. U nfamiliarity with filling out a form
is somewhat different than simply not thinking of something wh en fil l ing out a
form. In any event, the Boa rd 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

.

F inally , Claimant’s attempt to cure his failure to include o n his claims form a reference to any alleged medication as an excuse for his tardiness also must
fail. R egarding Claimant’ s failure to b ring items in support of his position to7

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 t o 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, JudgeIN 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, 201 5 , the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge