IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose Gamalinda, :

: No. 2060 C.D. 2013

Petitioner : Submitted: July 3, 2014

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: August 29, 2014

Jose Gamalinda (Claimant) petitions for review of the October 11, 2013, 

order of the Unemployment Compensation Board of Review (UCBR) reversing the 

decision of a referee and denying Claimant unemployment compensation (UC) 

benefits under section 402(e) of the Unemployment Compensation Law (Law)1due to 

his discharge from work for willful misconduct. We affirm.

 

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 that an employee shall be ineligible for compensation 

for any week “[i]n which his unemployment is due to his discharge . . . from work for willful 

misconduct.” 43 P.S. §802(e).
2

Claimant worked as a beverage server for Sugarhouse HSP Gaming, L.P.

(Employer), from April 4, 2012, through March 1, 2013. Employer has a policy, of 

which Claimant was aware, that prohibits rude or discourteous behavior toward 

guests, supervisors, and other team members. Employer’s disciplinary system is

progressive. However, depending on the egregiousness of an act, Employer reserves 

the right to skip levels of discipline and immediately terminate an employee. 

(UCBR’s Findings of Fact, Nos. 1-2.)

During the year that Claimant worked for Employer, Claimant received 

verbal and written warnings regarding his performance. Two weeks before his 

termination, Employer’s security guard told Claimant not to walk through a 

cordoned-off section of the casino. Thereafter, on March 1, 2013, Claimant walked 

toward a cordoned-off section where the security guard was standing. The security 

guard told Claimant not to walk through the cordoned-off area because Employer’s 

security team was collecting money from its table games. The security guard tried to 

physically stop Claimant from entering the cordoned-off section, but Claimant 

pushed his way through. While the security guard was on the radio, Claimant walked

back toward the security guard and shoved him from behind. (Id., Nos. 3-9.)

Employer investigated the incident and determined that Claimant’s 

conduct was egregious and warranted immediate discharge. Employer discharged 

Claimant for the physical altercation and his rude and discourteous behavior towards

the security guard. (Id., Nos. 10-11.)
3

Claimant filed a claim for UC benefits, which was denied by the local 

service center. Claimant appealed to the referee, who scheduled an evidentiary 

hearing for May 8, 2013. Five days before the hearing, on May 3, 2013, Employer 

sent a written continuance request to the referee because Employer’s main witness, 

Christopher Reeves, was scheduled to testify before another referee in a separate UC 

matter at the same time and date. The referee did not respond to Employer’s request 

and held the hearing on May 8, 2013. Only Claimant appeared and testified. (Id., 

Nos. 12-15.) 

The referee reversed the service center’s determination and granted

Claimant UC benefits. Employer appealed to the UCBR, which remanded to the 

referee with instructions to act as the UCBR’s hearing officer and “to receive 

testimony and evidence on the [E]mployer’s reason for its nonappearance at the 

previous hearing. The parties may also provide new or additional testimony and 

evidence on the merits.” (UCBR’s Order, 7/19/13, at 1.) At the remand hearing, 

Claimant and two witnesses for Employer appeared and testified. (UCBR’s Decision,

10/11/13, at 2.) 

Based on the record, the UCBR determined that Employer requested a 

continuance and had good cause for not appearing at the initial referee hearing. (Id.) 

Further, the UCBR found that Employer presented credible evidence that Claimant’s 

conduct was an intentional violation of Employer’s policy and was so egregious that 

it warranted immediate termination. (Id. at 3.) The UCBR concluded that Claimant’s 
4

conduct constituted willful misconduct and that Claimant was ineligible for benefits 

under section 402(e) of the Law. (Id.) Claimant petitioned this court for review.2

Initially, Claimant asserts that the UCBR erred in granting Employer’s 

request to reopen the hearing after Employer failed to attend the initial referee

hearing. Specifically, Claimant argues that Employer failed to show good cause for 

reopening the hearing. We disagree.

A party who fails to appear for a scheduled hearing and seeks an 

additional hearing must show good cause for failing to appear at the first hearing. 

McNeill v. Unemployment Compensation Board of Review, 511 A.2d 167, 169 (Pa. 

1986). Section 504 of the Law grants the UCBR discretion to order a remand to 

afford the parties a “reasonable opportunity for a fair hearing.” 43 P.S. §824. 

According to section 101.104(c)(3) of the UCBR’s regulations:

(c) [T]he [UCBR] may direct the taking of 

additional evidence, if in the opinion of the [UCBR], the 

previously established record is not sufficiently complete 

and adequate to enable the [UCBR] to render an appropriate 

decision. The further appeal shall be allowed and additional 

evidence required in any of the following circumstances:

* * *

(3) Under §101.24 (relating to reopening of 

hearing) a request for reopening received after the decision 

 

2 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, or whether the findings of fact were unsupported by 

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
5

of the referee was issued which constitutes a request for 

further appeal to the [UCBR].

34 Pa. Code §101.104(c)(3). 

Section 101.24 of the UCBR’s regulations governs all requests for 

reopening of hearings by a party who did not attend a scheduled hearing. 34 Pa. 

Code §101.24. Section 101.24(a) and (c) of the UCBR’s regulations provides:

(a) If a party who did not attend a scheduled 

hearing subsequently gives written notice, which is received 

by the tribunal prior to the release of a decision, and it is 

determined by the tribunal that his failure to attend the 

hearing was for reasons which constitute “proper cause,” 

the case shall be reopened. Requests for reopening, 

whether made to the referee or [UCBR], shall be in writing; 

shall give the reasons believed to constitute “proper cause” 

for not appearing; and they shall be delivered or mailed.

* * *

(c) A request for reopening the hearing which is 

not received before the decision was mailed, but is received 

or postmarked on or before the 15th day after the decision of 

the referee was mailed to the parties shall constitute a 

request for further appeal to the [UCBR] and a reopening of 

the hearing, and the [UCBR] will rule upon the request. If 

the request for reopening is allowed, the case will be 

remanded and a new hearing scheduled, with written notice 

thereof to each of the parties. At a reopened hearing, the 

opposing party shall be given the opportunity to object to 

the reopening if he so desires.

34 Pa. Code §101.24(a) and (c).

Thus, the party requesting that the hearing be reopened must set forth the 

reasons for his or her failure to appear at the hearing, and the UCBR must make an 
6

independent determination that those reasons constitute proper cause. McNeill, 511 

A.2d at 169. Section 101.23(b) of the UCBR’s regulations provides that, although

the mere absence of a witness does not constitute proper cause to continue a hearing, 

the absence of a witness whose proposed testimony “would be competent and 

relevant to the issues involved” and “essential to a proper determination of the case” 

is a sufficient basis upon which to grant a continuance. 34 Pa. Code §101.23(b). 

At the remand hearing, Reeves confirmed that he was unable to attend 

the May 8, 2013, hearing because of a conflicting UC hearing. Reeves presented the 

notices from the conflicting hearings, the written request for a continuance, the fax 

receipt confirming the referee’s receipt of the continuance request, and testimony that 

Employer telephoned the referee and left numerous messages regarding the requested 

continuance. (Employer Exs. 1-3; N.T., 8/9/13, at 6-8.) Moreover, without Reeves’

testimony, Employer would have had no evidence regarding its investigation or the 

administrative steps it took to discharge Claimant.3 The record contains no evidence

that Employer’s other witness could have related those facts. The UCBR deemed 

Reeves’ testimony necessary to make Employer’s case, and, because Reeves was 

unavailable, the UCBR held that the referee should have granted Employer’s 

continuation request. We agree. Therefore, because Employer had good cause for 

not appearing at the initial UC hearing, the UCBR did not err in granting Employer’s 

request to reopen the hearing.

 

3 Reeves testified and presented the entire case against Claimant. After reviewing the 

surveillance video, Reeves explained what happened the morning of March 1, 2013. Reeves 

narrated the referee’s viewing of the video, testified regarding what steps Employer took in 

conducting its investigation, presented Employer’s other witness, and presented and submitted all of 

Employer’s evidence into the record. 
7

Next, Claimant contends that the UCBR erred in concluding that he 

engaged in willful misconduct. We disagree. “Willful misconduct” is defined as: (1) 

a wanton and willful disregard of the employer’s interests; (2) a deliberate violation 

of the employer’s rules; (3) a disregard of the standards of behavior that an employer 

can rightfully expect from its employees; or (4) negligence that manifests culpability, 

wrongful intent, evil design, or an intentional and substantial disregard of the 

employer’s interests or the employee’s duties and obligations. Oliver v. 

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

(en banc). When an employee is discharged for violating an employer’s policy, the 

employer must prove the existence of the policy and the fact of its violation. Walsh v. 

Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 

2008). The burden then shifts to the employee to prove that he or she had good cause 

for violating the policy. Id. Good cause is established where the action of the 

employee is “justifiable and reasonable under the circumstances.” Id.

Here, Claimant admitted that Employer has a policy against rude or 

discourteous behavior toward other team members or customers and that he was 

aware of the policy. Claimant, however, argues that Employer did not enforce the

policy consistently because Employer permitted two other employees to return to 

work after being fired for violating the policy.

This court has determined that:

Disparate treatment is an affirmative defense by 

which a claimant who has engaged in willful misconduct 

may still receive benefits if he can make an initial showing 

that: (1) the employer discharged claimant, but did not 

discharge other employees who engaged in similar conduct; 
8

(2) the claimant was similarly situated to the other 

employees who were not discharged; and (3) the employer 

discharged the claimant based upon an improper criterion.

Geisinger Health Plan v. Unemployment Compensation Board of Review, 964 A.2d 

970, 974 (Pa. Cmwlth. 2009) (en banc). 

The record reveals that an employee can request a “general manager 

review” with Employer to contest his or her termination. (N.T., 8/9/13, at 11.) After 

his termination, Claimant requested a general manager review but did not get rehired. 

(Id.) Claimant argues that other employees who were terminated for violating

Employer’s policy were later rehired. However, Claimant did not produce any 

testimony or evidence indicating that the other employees he referenced were 

terminated for similar conduct, were terminated more than once,

4

or had other 

disciplinary issues prior to their termination. Therefore, the UCBR properly 

determined that Claimant failed to show that the two employees that Employer 

rehired were similarly situated to Claimant and that disparate treatment occurred.

Next, Claimant contends that the UCBR’s findings of fact numbers 7, 8, 

and 9 are not supported by substantial evidence.5 Specifically, Claimant argues that 

 

4 Claimant was fired on February 8, 2013, but was later rehired at the general manager 

review. (N.T., 8/9/13, at 18.)

5

The UCBR’s contested findings of fact are as follows:

7. The security guard tried to stop the claimant from 

walking through the cordoned[-]off section, but the claimant started 

pushing his way past the security guard despite the security guard’s 

protests to his conduct.

(Footnote continued on next page...)
9

he did not push past the security guard or walk back around and push the security 

guard.

The evidence presented at the remand hearing consisted of the 

conflicting testimony of Claimant and Employer’s witnesses. Essentially, Claimant is 

asking this court to reassess the credibility of the witnesses and to resolve those 

conflicts in Claimant’s favor. “In [UC] proceedings, the [UCBR] is the ultimate fact 

finder, and it is empowered to resolve all conflicts in the evidence and to determine 

the credibility of witnesses.” Procito v. Unemployment Compensation Board of 

Review, 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008) (en banc). Here, the UCBR 

deemed Employer’s witnesses credible and resolved the conflicts in the testimony in 

Employer’s favor. Where substantial evidence supports the UCBR’s findings, 

credibility determinations made by the UCBR are not subject to review by this court. 

Duquesne Light Company v. Unemployment Compensation Board of Review, 648 

A.2d 1318, 1320 (Pa. Cmwlth. 1994).

In support of its testimony, Employer submitted the surveillance video of 

the March 1, 2013, incident along with witness statements taken during Employer’s 

 

(continued...)

8. The security guard tried to physically stop the claimant 

from pushing through, but the claimant persisted and pushed his way 

past the security guard.

9. While the security guard was on a radio, the claimant 

came back around and shoved the security officer from behind.

(UCBR’s Findings of Fact, Nos. 7-9.)
10

investigation of the incident. A review of the record reveals that there was substantial

evidence to support the UCBR’s findings and its determination that Claimant violated 

Employer’s policy by ignoring the security guard’s instruction not to pass through the 

cordoned-off section and, thereafter, pushing the security guard. 

The burden then shifted to Claimant to prove good cause for violating 

Employer’s policy. See Walsh, 943 A.2d at 369. Claimant’s only excuse for his 

actions was that he reacted “in the heat of the moment . . . the guy’s instigating . . . 

and arguing.” (N.T., 8/9/13, at 27.) This excuse neither justifies Claimant’s actions 

nor makes them reasonable. Claimant, when asked by the security guard not to walk 

through a cordoned-off section, should have walked around that section. Claimant 

should not have pushed his way through the secured area or returned to push the 

security guard in the back. Because Claimant’s actions were neither justified nor 

reasonable under the circumstances, Claimant did not establish “good cause” for 

violating Employer’s policy.

Accordingly, because the UCBR properly concluded that Claimant 

committed willful misconduct under section 402(e) of the Law, we affirm.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jose Gamalinda, :

: No. 2060 C.D. 2013

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 29th day of August, 2014, we hereby affirm the October 

11, 2013, order of the Unemployment Compensation Board of Review.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge