IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mascari Auto Body, Inc., :

Petitioner :

:

v. : No. 691 C.D. 2015

: Submitted: November 20, 2015

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: February 8, 2016

Mascari Auto Body, Inc. (Employer) petitions for review of the April 

1, 2015 order of the Unemployment Compensation Board of Review (Board) 

concluding that Robert E. Sozanski (Claimant) was not ineligible for 

unemployment compensation under Section 402(e) of the Unemployment 

Compensation Law1(Law). We affirm.

Claimant was employed as a full-time auto mechanic from December 

2011 until May 19, 2014. (Record (R.) Item 17, Board’s Decision and Order, 

Finding of Fact (F.F.) ¶1.) In his initial internet claim for unemployment 

compensation, Claimant listed as the reason that he was discharged from 

 

1 Act of December 5, 1936, Second. Ex. Sess., P.L. (1937) 2897, §402(e), as amended, 43 P.S. 

§802(e). Section 402(e) provides 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....” 43 P.S. §802(e). 
2

employment his unsatisfactory performance, and reported that he was not warned 

about his work performance and that his unsatisfactory work performance was due 

to a knee injury for which he was taking pain medications. (R. Item 2, Initial 

Internet Claims.) Employer submitted separation information to the Department of 

Labor and Industry (Department) in the form of an oral interview indicating that 

Claimant “was causing too much damage, his work performance really plummeted. 

It was a mutual agreement to part ways.” (R. Item 3, Record of Oral Interview.) 

Employer’s Notice of Application states that Claimant was discharged from his 

employment due to “unsatisfactory work performance” and further states that 

“[Claimant] was given written examples of repairs made to customers’ cars that 

were completed improperly.” (R. Item 4, Employer’s Notice of Application.) 

On June 18, 2014, the Department issued a Notice of Determination 

finding Claimant not ineligible for benefits under Section 402(e) of the Law,

because Claimant had worked to the best of his ability. (R. Item 5, Notice of 

Determination.) Employer appealed, and on September 2, 2014, a hearing was 

held before the Referee at which only Claimant testified. (R. Item 10, 9/2/14 

Hearing Transcript.) The Referee dismissed Employer’s appeal as untimely under 

Section 501(e) of the Law, 43 P.S. § 521(e) and Employer appealed that decision; 

the Board ordered a remand hearing at which Claimant testified, together with 

Employer’s owner (Owner) and Employer’s controller. (R. Item 10, 11/4/14 

Hearing Transcript (H.T.).) Following the remand hearing, the Board issued an 

April 1, 2015 decision in which it determined that Employer had established a 

timely appeal via fax transmission and established proper cause for nonappearance 

at the initial September 2, 2014 hearing but ultimately affirmed the Notice of 

Determination finding Claimant not ineligible for benefits. (R. Item 17, Board’s 
3

Decision and Order.) In its decision, the Board made the following relevant 

findings of fact:

2. The claimant had previously informed one of the 

employer’s management staff, Gina Novick, that he was 

seeing an orthopedic surgeon for knee pain and was 

taking a prescribed mild pain reliever.

3. The owner discovered that two vehicles required 

additional repairs after the claimant had worked on them; 

one vehicle required an additional $173 in repairs, and 

the other vehicle required an additional $540.08 in 

repairs.

4. The claimant had not received any prior verbal or 

written warnings about these repair issues.

5. Sometime around May 19, 2014, the owner 

discovered that the claimant caused approximately $600 

in damages to the wheel of another vehicle.

6. Gina Novick informed the claimant that he was being 

discharged, and, if he did not sign the Step-By-Step 

Employee Warning Report, the employer would require 

him to pay for the parts to repair the damaged vehicles.

7. On May 20, 2014, the claimant signed an 

acknowledgement indicating that he received the StepBy-Step Warning Report and was being discharged for 

substandard work quality.

8. At the time that the claimant was discharged, he told 

Ms. Novick that he possibly damaged the vehicles 

because he was under the influence of mild sedative pain 

medication for his knee injury.

(R. Item 17, Board’s Decision and Order, F.F. ¶¶2-8.) The Board reasoned that,
4

Here, the parties offered conflicting testimony as to the 

timing and receipt of final disciplinary action(s) and 

other related issues. The Board resolves the relevant 

conflicts in testimony in favor of the claimant, who 

specifically testified that he did not receive any prior 

verbal or written warnings about damage to customer 

vehicles or other work performance issues before his last 

day of work on May 19, 2014. The claimant signed the 

Step-By-Step Employee Warning Report on May 20, 

2014. At that time, the employer informed the claimant 

that he was being discharged, and, if he did not sign the 

Step-By-Step Warning Report, the employer would 

require him to pay for the parts to repair the three 

damaged vehicles. 

(Id., Discussion.) The Board concluded that Employer failed to offer sufficient 

testimony or other evidence to establish that Claimant allowed his work 

performance to deteriorate through carelessness or negligence, and that Claimant’s 

behavior during the final incidents leading to his discharge from employment did 

not qualify as willful misconduct. (Id.) Employer appealed the Board’s decision.2 

Before this Court, Employer argues essentially that the Board erred in 

finding that Employer failed to meet its burden of proving that Claimant was 

discharged from employment due to willful misconduct; Employer asserts that 

contrary to the Board’s finding, Employer warned Claimant of damages he caused 

to certain vehicles before the final incident that resulted in his termination.3 

 

2

In an unemployment compensation appeal, this Court’s scope of review is limited to 

determining whether an error of law was committed, whether constitutional rights were violated, 

and whether necessary findings of fact are supported by substantial evidence. Section 704 of the 

Administrative Agency Law, 2. Pa.C.S. §704; On Line Inc. v. Unemployment Compensation 

Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008). Substantial evidence is defined as 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 

Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 647 n.4 (Pa. Cmwlth. 

2012).

3 We reject Employer’s other argument, that Claimant was discharged for violation of an 

Employer policy regarding the proper care of vehicles and its employees’ duty to ensure that
5

Pennsylvania courts have defined willful misconduct as: (i) the 

wanton and willful disregard of an employer’s interests; (ii) deliberate violation of 

rules; (iii) disregard of the standards of behavior which an employer can rightfully 

expect from an employee; or, (iv) negligence showing an intentional disregard of 

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

Unemployment Compensation Board of Review, 827 A.2d 422 (Pa. 2002); Johns v. 

Unemployment Compensation Board of Review, 87 A.3d 1006 (Pa. Cmwlth. 2014). 

The employer bears the burden of establishing a claimant engaged in willful 

misconduct. Id. 

Employer cites Cullison v. Unemployment Compensation Board of 

Review, 444 A.2d 1330, 1332 (Pa. Cmwlth. 1982), and Scott v. Unemployment 

Compensation Board of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012), in support 

of its position that Claimant has demonstrated a conscious indifference to 

Employer’s interest sufficient to establish willful misconduct. In Cullison, we 

stated that mere incompetence, inexperience or inability might justify a discharge

from employment, but does not constitute willful misconduct; only where the 

record shows that notwithstanding his ability to perform, an employee’s work 

performance progressively worsens and his actions are careless, can an intentional 

and substantial disregard of the employer’s interests and a disregard of the 

 

vehicles under repair not be further damaged, and Employer’s contention that Claimant failed to 

meet his burden to show that he had good cause to violate this policy. Where a claimant has 

been discharged for a rule violation, the employer has the burden to show the existence of a 

reasonable work rule, and that the claimant violated the rule; once the employer establishes those 

elements, the burden shifts to the claimant to show that he had good cause to violate the rule. 

Conemaugh Memorial Medical Center v. Unemployment Compensation Board of Review, 814 

A.2d 1286 (Pa. Cmwlth. 2003). Here, Employer did not submit any evidence to the Board 

regarding any specific policy that Claimant is alleged to have violated or any specific instruction 

that Claimant is alleged to have disregarded. 
6

employee’s duties and obligations be demonstrated. 444 A.2d at 1332. In Scott, 

we applied a similar rationale and affirmed the Board’s denial of benefits where 

the claimant’s continued poor work performance demonstrated an intentional 

disregard of the employer’s interests and of the claimant’s duties and obligations. 

36 A.3d at 647-648. However, both cases involved employees who received 

multiple warnings over extended periods of time that their work performance was 

unsatisfactory. Scott involved an experienced hospital technician charged with 

cleaning instruments used in surgical procedures who had repeatedly been warned 

in writing about dirty instrument trays, had been previously placed on 

administrative leave for violations of hospital policy and on another occasion, had 

been suspended for policy infractions. In Cullison, the claimant was a lift truck 

operator who had received multiple warnings about his work performance, 

particularly over the last three months of his employment. 

The record demonstrates that Employer issued just one warning, titled 

a ‘Step-By-Step Employee Warning Report,’ to Claimant regarding his 

substandard work quality, on May 19, 2015, and that May 19, 2015 was Claimant’s 

last day of work. (R. Item 16, Remand Hearing, Exhibit; Transcript of Testimony 

(H.T.) at 7.) The warning clearly indicates that the action being taken is 

“dismissal.” (R. Item 16, Exhibit.) Attached to the warning is a sticker indicating 

the names of three individual clients of Employer, presumably those clients whose 

vehicles were damaged by Claimant during the repair process. (Id.) Contrary to 

Owner’s testimony that Claimant was given the opportunity on May 19, 2015 to 

remain in his employment so long as he paid for the damages to two of the 

vehicles, Claimant testified repeatedly that he was told that he would be dismissed, 
7

whether or not he signed the Step-By-Step Warning Report.4 (R. Item 16, H.T. at 

9.) The Board credited Claimant’s testimony that he had received no warnings, 

verbal or written, about his work performance prior to his last day of employment.

 Our Courts have made clear that the Board is the ultimate fact finder 

and is empowered to resolve conflicts in the evidence and to determine the 

credibility of witnesses. The Board’s findings are conclusive and binding on 

appeal if the record, when examined as a whole, contains substantial evidence to 

support those findings, even if there is other contrary evidence. Bruce v. 

Unemployment Compensation Board of Review, 2 A.3d 667, 671-72 (Pa. Cmwlth.

2010). Substantial evidence supports the Board’s findings that Claimant received 

no prior verbal or written warnings about damage to customer vehicles or other 

work performance issues before his last day of work and that Employer failed to 

offer sufficient testimony or other evidence that Claimant allowed his work 

performance to deteriorate through carelessness or negligence; accordingly, we 

discern no error in the Board’s determination that Employer failed to sustain its 

burden of proving that it discharged Claimant from his employment as a result of 

actions that constitute willful misconduct. The Board’s order is affirmed.

_____________________________________

JAMES GARDNER COLINS, Senior Judge

 

4 Claimant testified that he was informed by Owner’s daughter that if he did not sign the warning 

report he would be dismissed and held responsible for the cost of parts for three damaged 

vehicles, and if he did sign the warning report, he would also be dismissed, but not held 

responsible for the costs of the parts involved. (R. Item 16, H.T. at 9.)
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mascari Auto Body, Inc., :

Petitioner :

:

v. : No. 691 C.D. 2015

: 

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 8

th day of February, 2016, the order of the 

Unemployment Compensation Board of Review in the above-captioned matter is 

AFFIRMED.

_____________________________________

JAMES GARDNER COLINS, Senior Judge