IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Foreman, :

Petitioner :

:

v. : No. 1025 C.D. 2017

: Submitted: June 22, 2018

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: August 22, 2018

Claimant William J. Foreman (Claimant) petitions pro se for review of 

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

affirmed a Referee’s determination that Claimant was ineligible for benefits under 

Section 402(e) of the Unemployment Compensation Law (Law),1relating to willful 

misconduct. For the reasons set forth below, we now affirm the Board’s order.

Berkheimers Construction (Employer) employed Claimant as a 

construction worker. He worked for Employer from April 2015 through 

February 13, 2017. On February 13, 2017, Claimant’s employment ended after he 

 

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

43 P.S. § 802(e).
2

did not report for work on time, despite receiving a final warning regarding his 

attendance. Claimant subsequently filed for unemployment compensation benefits. 

On February 21, 2017, the Erie UC Service Center (Service Center)

determined that Claimant was ineligible for unemployment compensation benefits 

under Section 402(e) of the Law. (Certified Record (C.R.), Item No. 4.) The Service 

Center determined that Claimant had been warned about his attendance, Claimant 

did not report to work on time, and Claimant did not show good cause for the 

tardiness. (Id.) Claimant appealed the Service Center’s determination. (C.R., Item 

No. 5.)

On March 24, 2017, a Referee conducted a hearing. (C.R., Item No. 9.) 

During the hearing, Claimant testified to the circumstances surrounding his 

separation from employment. Both James Berkheimer (Owner), Employer’s 

part-owner, and Melody Berkheimer, Employer’s part-owner and secretary, 

appeared on behalf of Employer. (Id. at 1-2.) 

At the hearing, Claimant sought to establish that he had not engaged in 

willful misconduct and that Employer had not given Claimant a warning regarding 

his attendance. Claimant stated that Owner usually contacted him on Sunday or 

early Monday to notify him where to report for work, giving Claimant enough time 

to report as expected. (Id. at 21.) Claimant testified that on January 30, 2017, he 

did not, however, receive instructions from Owner as to where he was to report for 

work that day. (Id.) Claimant explained that he texted Owner, questioning him as 

to why he did not receive notice of where to report to work. (Id. at 23.) Claimant 

testified that Owner explained to him that workers are responsible to contact Owner

to learn when and where they are to report. (Id.) Claimant stated that on 

February 13, 2017, he slept through his alarm, and when he informed Owner, Owner
3

told him to report directly to the worksite. (Id. at 26.) Claimant stated that he started

driving, but he did not know the exact location of the worksite. (Id. at 26.) Claimant 

testified that he texted Owner that he would call him after he started driving so 

Claimant could receive directions to the exact location of the worksite. (Id.) By the 

time he was able to contact Owner to receive the directions, Owner told him, “Never 

mind.” (Id. at 27.) 

Owner testified that on December 27, 2016, Claimant’s start time 

was 7:00 a.m. (Id. at 10.) Owner stated that around 8:00 a.m., he texted Claimant 

to find out where he was and to inform him that this was his final warning regarding 

attendance. (Id. at 9-10.) Owner stated that Claimant did not respond to his text. 

(Id. at 11.) Owner stated that weeks later, he and Claimant exchanged texts 

regarding the December 27, 2016 incident, in which Claimant explained that it takes 

him at least thirty minutes to drive from his house to report for work. (Id. at 14-15.) 

Owner testified that on February 12, 2017, Owner texted Claimant, providing the 

location of the worksite and advising him to report to work the next day at 6:45 a.m.

at Owner’s house, to which Claimant replied, “Okay.” (Id. at 14.) Owner stated 

that, on the morning of February 13, 2017, at 6:51 a.m., Claimant texted Owner that 

he had just woken up and “would be on the road in a minute.” (Id.) Owner then 

texted Claimant to report directly to the worksite. (Id.) Owner testified further that 

by 8:47 a.m., Claimant had not reported nor contacted Owner. (Id.) Owner stated 

that he texted Claimant, “Never mind. Will mail your last check. Not going to keep 

allowing this to go on. Will send termination letter with check.”2 (Id.)

 

2 Melody Berkheimer also testified on behalf of Employer. (C.R., Item No. 9 at 30.) 

Melody Berkheimer testified that upon commencement of his employment, Claimant read and 

signed a policy agreement, listing conditions of employment. (Id.) Melody Berkheimer testified 

further that Employer’s policy agreement states that employment is at-will, includes language 

regarding attendance, and notes that tardiness is unacceptable. (Id. at 30-31.)
4

The Referee made the following relevant findings:

1. [Claimant] was employed by [Employer] at $18 an 

hour, full-time, from April 2015 through 

February 13, 2017.

2. [Employer] discharged [Claimant] for ongoing 

unresolved tardiness.

3. On December 27, 2016, [Owner] was at the Sheetz 

warehouse between 7 and 8 a.m.

4. [Claimant’s] starting time at the Sheetz warehouse 

was 7 a.m.

5. Shortly prior to 8 a.m., [Owner] was inquiring as to 

[Claimant’s] whereabouts as he was expected to be 

at work at 7 a.m. and was not.

6. In a text, [Owner] apprised [Claimant] that this was 

his last warning.

7. [Claimant] did not respond to [Owner’s] text, and 

[Owner] had left shortly prior to 8 a.m. on 

December 27, 2016.

8. On February 12, 2017, [Owner] sent [Claimant] a 

text at 6:18 p.m., advising [Claimant] to report at 

[Owner’s] place at 6:45 a.m. [on February 13] and 

divulged the worksite.

9. On the same day, within an hour, [Claimant] texted 

back, “Okay.”

10. On the morning of February 13, 2017, [Claimant] 

texted [Owner] that he had just awakened.

11. [Owner’s] text back to [Claimant] advised 

[Claimant] to meet at the worksite.

12. Approximately 8:45 a.m. on February 13, 2017, 

[Claimant] reached [Owner] by phone, inquiring 

where the worksite was.

13. At the approximate time, [Owner] texted 

[Claimant], “Never mind. Will mail your last check. 

Not going to keep allowing this to go on. Will send 

termination letter with check,” ending [Claimant’s]

employment.
5

14. It is approximately a half hour of travel from 

[Claimant’s] home to the worksite they were 

working at on February 13, 2017.

(C.R., Item No. 10.) The Referee, in affirming the Service Center’s determination, 

concluded that Claimant was ineligible for benefits under Section 402(e) of the Law, 

because Claimant engaged in willful misconduct. (Id.) The Referee reasoned, in 

part:

The Referee finds [Owner’s] testimony competent and 

credible that by a text, he had provided the claimant a final 

warning on December 27, 2016, regarding his inability to 

report to work at the time scheduled. . . . It is apparent, 

based upon the ongoing texts back and forth regarding the 

claimant’s arrival or not arrival [sic] on time, [Owner] was 

more than lenient with the claimant’s inability to arrive to 

work on time, even after the final warning or last warning 

on December 27, 2016. In fact, [Owner] appeared to be 

willing to allow the claimant to arrive to work late on 

February 13, 2017[,] until the claimant had not arrived at 

the site within a reasonable time after advising that he had 

just woken up. In fact, the Referee resolves conflicting 

testimony in regards to times of texts favorable to [Owner]

that in fact, the texts occurred at 8:47 a.m. when [Owner]

had finally given up on the claimant’s inability to report 

for work on time. 

(Id.) 

Claimant appealed the Referee’s decision to the Board. (C.R., Item 

No. 11.) The Board concluded that the Referee’s determination was proper under 

Section 402(e) of the Law. (C.R., Item No. 12.) The Board adopted and 

incorporated the Referee’s findings and conclusions, affirming the Referee’s 

decision. (Id.) Claimant then petitioned this Court for review.
6

On appeal to this Court,

3 Claimant argues that substantial evidence does 

not exist to support the Board’s findings of fact. Claimant further argues that the 

Board erred in concluding that Claimant engaged in willful misconduct. Claimant 

also argues that the Referee deprived him of his right to due process.

First, we will address Claimant’s argument that the Board’s findings of 

fact numbers 2, 7, and 14 are 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, we must examine the testimony in the light most favorable to 

the prevailing party, giving that party the benefit of any logical and reasonable 

inferences that can 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 if the record taken as a whole contains substantial evidence to support 

them. Penflex Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). “The fact that [a party] 

may have produced witnesses who gave a different version of the events, or that [the 

party] might view the testimony differently than the Board is not grounds for reversal 

if substantial evidence supports the Board’s findings.” Tapco, Inc. v. Unemployment 

Comp. Bd. of Review, 650 A.2d 1106, 1108 (Pa. Cmwlth. 1994). Similarly, even if 

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

 

3 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.
7

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). 

Moreover, “[i]t is well established within our jurisprudence that an unsupported 

finding of fact which is not necessary to the adjudication merely constitutes harmless 

error.” Borough of Schuylkill Haven v. Prevailing Wage Appeals Bd., 

6 A.3d 580, 585 (Pa. Cmwlth. 2010).

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

factfinder 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, 1388 (Pa. 1985). The Board is also empowered to resolve conflicts 

in the evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 845 A.2d 253, 255 

(Pa. Cmwlth. 2004). “Questions of credibility and resolution of evidentiary conflicts 

are within the sound discretion of the Board, and are not subject to re-evaluation on 

judicial review.” Peak, 501 A.2d at 1388.

Finding of fact number 2 provides: “[Employer] discharged [Claimant] 

for ongoing[,] unresolved tardiness.” (Referee’s Decision.) As to finding of fact 

number 2, Owner testified that on December 27, 2016, he gave Claimant a final 

warning about being late to work. Owner also testified that he instructed Claimant 

to be at Owner’s house at 6:45 a.m., on February 13, 2017. Owner testified that on 

February 13, 2017, Claimant notified Owner at 6:51 a.m. that he “just woke up” and 

would “be on the road in a minute,” after which Owner instructed Claimant to go to 

the worksite rather than Owner’s house. (C.R., Item No. 9 at 14.) Owner terminated 

Claimant’s employment when Claimant failed to report to the worksite by 8:47 a.m. 

As noted above, the Board, by adopting the Referee’s decision, found Owner’s 
8

testimony to be credible, such that finding of fact number 2 is supported by 

substantial evidence.

Finding of fact number 7 provides: “[Claimant] did not respond to 

[Owner’s] text, and [Owner] had left shortly prior to 8 a.m. on December 27, 2016.” 

(Id.) As to finding of fact number 7, Owner testified that on December 27, 2016, 

following numerous instances of tardiness by Claimant, Owner sent Claimant a text, 

giving him a final warning regarding his attendance, and Claimant did not respond 

to Owner’s message. (Id.) Again, the Board found Owner’s testimony to be 

credible. Thus, finding of fact number 7 is supported by substantial evidence.

Finding of fact number 14 provides: “It is approximately a half hour of 

travel from [Claimant’s] home to the worksite they were working at on 

February 13, 2017.” (Referee’s Decision.) In making finding of fact number 14, the 

Board appears to have relied on Owner’s initial testimony that Claimant had a half 

hour drive or less to Owner’s house, located in Imler, Pennsylvania. Claimant 

estimated the travel time from his home to the worksite on February 13, 2017, to be 

an hour. (C.R., Item No. 9 at 28.) After a lengthy discussion during the hearing

among Owner, Claimant, and the Referee regarding routes, distances, and times, the 

Referee stated that one hour would be a reasonable amount of time for Claimant to 

travel from Claimant’s home to the worksite (in Martinsburg, Pennsylvania) where 

Claimant was to work on February 13, 2017. (Id. at 30.) Owner agreed with the 

Referee’s estimation of the travel time for that location. (Id.) Thus, we agree with 

Claimant that finding of fact number 14 is not supported by substantial evidence. 

Our inquiry, however, does not end there. As discussed above, an 

unsupported finding of fact does not result in reversible error if the finding is not 

necessary to the adjudication. See Borough of Schuylkill Haven, 6 A.3d at 585. The 
9

duration of the drive from Claimant’s house to the worksite was not a necessary 

finding of fact. As the Board observes in its brief, the time to the worksite was not 

crucial in this instance, because even if the drive was one hour instead of thirty 

minutes, Claimant was still not at the worksite almost two hours later, after Claimant

notified Owner that he had “just woke up” and would “be on the road in a minute.” 

(Board’s Br. at 9; C.R., Item No. 9 at 14.) Thus, because finding of fact number 14 

was not necessary to the decision, the unsupported finding constitutes harmless 

error.

We next address Claimant’s argument that the Board erroneously 

concluded that he committed willful misconduct. Whether an employee’s conduct 

constituted willful misconduct is a matter of law subject to our review. Walsh v. 

Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Under 

Section 402(e) of the Law, Employer bears the burden of proving that Claimant’s 

unemployment is due to his willful misconduct. Id. at 369. “Willful misconduct” is 

not defined by statute. The courts, however, have defined “willful misconduct” as: 

(a) Wanton or willful disregard of employer’s interests, 

(b) deliberate violation of the employer’s rules, 

(c) disregard of 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 and obligations.

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

employer has the right to expect that his employees will attend work when they are 

scheduled, that they will be on time and that they will not leave work early without 

permission.” Fritz v. Unemployment Comp. Bd. of Review, 446 A.2d 330, 333 (Pa. 

Cmwlth. 1982). “[H]abitual tardiness is adequate grounds for a finding of willful 

misconduct.” Id. 
10

Willful misconduct will not be found, however, where a claimant can 

show good cause. Id. A claimant shows good cause when he demonstrates that the 

actions which resulted in the discharge of his employment were justifiable and 

reasonable under the circumstances. Id. Generally, oversleeping does not constitute 

good cause. See Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 

479 A.2d 57, 59 (Pa. Cmwlth. 1984). Under the remoteness doctrine, willful 

misconduct will also not be found where there is an unexplained substantial delay 

between a claimant’s misconduct and the employer’s termination of employment. 

Raimondi v. Unemployment Comp. Bd. of Review, 863 A.2d 1242, 1247 (Pa. 

Cmwlth. 2004). The remoteness doctrine provides that “[a]n incident of willful 

misconduct cannot be so temporally remote from the ultimate dismissal and still be 

the basis for a denial of benefits.” Tundel v. Unemployment Comp. Bd. of Review, 

404 A.2d 434, 436 (Pa. Cmwlth. 1979).

Claimant argues that because Employer failed to communicate 

company policy and expectations, it should be held accountable for its chosen 

standard of conduct. Claimant argues that he was simply maintaining the status quo.

The Board argues that Claimant, despite being given a warning regarding his 

attendance, did not report to work on time and did not provide good cause. We agree 

with the Board. Although Owner may have tolerated Claimant’s tardiness in the 

past, on December 27, 2016, Owner gave Claimant a final warning about his 

attendance. When an employer advises an employee “that a rule will be strictly 

enforced, even though it had not been previously, violation of the rule . . . constitutes 

willful misconduct.” County of Luzerne v. Unemployment Comp. Bd. of Review, 

611 A.2d 1335, 1338 (Pa. Cmwlth. 1992) (quoting City of Greensburg v. 

Unemployment Comp. Bd. of Review, 590 A.2d 388, 390 (Pa. Cmwlth. 1991)). Thus, 
11

on that date, Owner put Claimant on notice that Owner expected Claimant to be on 

time for work. Despite this warning, Claimant overslept on February 13, 2017, and 

was unable to arrive at work on time or at a reasonable time thereafter, resulting in 

the termination of his employment. As Claimant was tardy again after a final 

warning, without good cause, the Board did not err in concluding that Claimant 

engaged in willful misconduct. Id. See Fritz, 446 A.2d at 333. 

Claimant cites the remoteness doctrine to further argue that Owner

condoned and accepted Claimant’s behavior by not issuing any discipline. 

Regarding Claimant’s argument that Owner accepted his tardiness, the record 

indicates that Owner permitted reasonable tardiness so long as it did not become an 

issue. (C.R., Item No. 9 at 30-31.) Claimant was tardy on multiple occasions and 

his tardiness on February 13, 2017, followed a final warning and exceeded two 

hours. Regarding Claimant’s argument that the remoteness doctrine applies, the 

record does not indicate that there was a substantial delay between Claimant’s 

misconduct and the termination. Owner gave Claimant a final warning, and, when 

Claimant was late again, Owner terminated Claimant’s employment that day. Thus, 

Claimant’s reliance on the remoteness doctrine is misplaced.

Finally, we address Claimant’s argument that the Referee deprived him 

of his due process rights. The essential elements of due process in an administrative 

proceeding are notice and an opportunity to be heard. Groch v. Unemployment 

Comp. Bd. of Review, 472 A.2d 286, 287-88 (Pa. Cmwlth. 1984); Wojciechowski v. 

Unemployment Comp. Bd. of Review, 407 A.2d 142, 143 (Pa. Cmwlth. 1979). 

Unrepresented claimants are entitled to assistance from the referee in the form of 

information regarding the unrepresented claimant’s rights, aid during the 

examination and cross-examination of witnesses, and any assistance compatible with 
12

the impartial discharge of the referee’s official duties. 34 Pa. Code § 101.21(a). The 

parties are permitted to present testimony which they believe is necessary to 

establish their rights. 34 Pa. Code § 101.21(b). The parties are limited, however, by

the discretion of the tribunal. Id. “An abuse of discretion occurs if, in reaching a 

conclusion, the law is overridden or misapplied or judgment exercised is manifestly 

unreasonable or is the result of partiality, prejudice, bias, or ill will.” Henderson v. 

Unemployment Comp. Bd. of Review, 77 A.3d 699, 713 (Pa. Cmwlth. 2013).

Claimant argues that the Referee failed to meet his obligation to 

Claimant as an unrepresented petitioner, thereby violating his right to due process. 

We interpret Claimant’s argument, however, to be a claim that the Referee abused 

his discretion. At the hearing, Claimant attempted to provide testimony by reading 

directly from a prepared statement. (C.R., Item No. 9 at 20-21.) The Referee 

requested that Claimant provide testimony but permitted Claimant to reference his 

prepared statement while testifying. (Id.) The Referee merely prohibited the 

verbatim reading of the prepared statement. (Id.) Our review of the record reveals 

that the Referee assisted Claimant throughout the hearing with his testimony and 

with questioning witnesses on cross-examination. There is nothing in the record to 

indicate that the Referee failed to meet his obligation to Claimant. It was within the 

discretion of the Referee to require Claimant to testify rather than read his prepared 

statement at the hearing. The Referee, therefore, did not abuse his discretion or 

deprive Claimant of his due process rights.4 

 

4 Claimant also argues that the Board erred in including in the certified record witness 

statements addressing Claimant’s overall attendance when the Referee sustained Claimant’s 

objection to their admission based on hearsay. Claimant asserts that these statements could have 

influenced the outcome and that their inclusion in the certified record was prejudicial. A review 

of the Referee’s decision and the order of the Board reveals that these statements were not relied 
13

Accordingly, we affirm the order of the Board.

P. KEVIN BROBSON, Judge

 

upon in denying Claimant benefits in this case. Thus, even if their presence in the certified record 

was in error, we would conclude the error to be harmless. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Foreman, :

Claimant :

:

v. : No. 1025 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 22nd day of August, 2018, the order of the 

Unemployment Compensation Board of Review is AFFIRMED.

P. KEVIN BROBSON, Judge