IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edgar D. Montijo

, :

Petitioner :

:

v. :

: Unemployment Compensation Board : of Review, : No. 389 C.D. 2020

Respondent : Submitted: February 1 9 , 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER , Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: April 21, 2021

Edgar D. Montijo (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) January 2 4, 2020 order affirming the Referee’s decision denying him UC benefits under Section
402(e) of the UC Law (Law). 1 The sole issue before this Court is whether the UCBR
erred by concluding that Fuling Plastic USA

, Inc. (Employer) met its burden of
proving that Claimant committed willful misconduct. 2 After review, this Court

affirm s

.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 802(e) (referring to willful misconduct).

2 Claimant presents three issues in his Statement of Questions Involved : (1) whether the Referee and the UCBR erred by concluding that Claimant’s alleged actions constituted willful misconduct; (2) whether the Referee and the UCBR’s findings were supported by substantial evidence; and (3) whether the Referee and the UCBR faile d to consider Claimant’s just cause for his actions. See Claimant Br. at 3

. Because these issues are subsumed in this Court’s analysis of whether the UCBR erred by concluding that Employer met its burden of proving that Claimant committed willful miscond uct
, they have been combined and will be addressed accordingly herein

.2 Claimant worked from April 16, 2015 to October 9, 2019

, as a forklift

operator for Employer

. 3 Employer’s August 2019 Employee Handbook (Handbook)
specifie d that an employee’s “[r]efusal or failure to follow safety rules and
procedures” is misconduct that could result in immediate employment termination.

See Certified Record (C.R.) at 105

- 106. The Handbook included Employer’s safety

rules. C laimant received the Handbook

. See C.R. Item 10, December 5, 2019 Notes
of Testimony (N.T.) at 7 , 18

.

On Septemb e r 30, 2019, while Employer’s Human Resources Manager
Monica Cajamarca (Cajamarca), Marketing Manager Jeannine Gallagher
(Gallagher), and technician Christian D ebarro (Debarro) were walking in the

warehouse , Claimant exited a trailer driving a forklift and nearly struck Debarro.
Cajamarca and Gallagher met with Claimant to discuss the September 30 , 2019
incident and, on October 3, 2019 , su spended Claimant pending further investigation.
On October 9, 2019, Employer discharged Claimant for violating its safe ty rules.

Claimant applied for UC benefits. On November 1 , 2019, the Altoona

UC Service Center determined that Claimant was in eligible for UC benefits pursuant

to Section 402(e) of the Law. Claimant appealed and a Referee held a hearing on December 5, 2 019

. On December 6 , 2019, the Referee affir m ed the UC Service
Center’s determination. Claimant appealed to the UCBR. On January 24, 2020 , the
UCBR affirmed the Referee’s decision. Claimant appealed to this Court. 4

3 Claimant was also Employer’s Warehouse Lead and forklift trainer.

4 “‘Our scope of review is limited to determining whether constitutional rights were violated, whether an error of la w was committed, or whether the findings of fact were unsupported by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev [

. ], 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev. , 197 A.3d 842, 843 n.4 (Pa. Cmwlth. 2018).3 Initially,

Section 402(e) of the Law provides that an employee is ineligible for [UC] benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in a[] [UC] c ase. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer’s interest; (2) a deliberate violation of the employer’s rules ; (3) a disregard of standards of behavior which the employer has a right to expect of an e mployee; or (4) negligence indicating an intentional disregard of the employer’s interest or a disregard of the employee’s duties and obligations to the employer.

Sipps v. Unemployment Comp. Bd. of Rev

. , 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(emphasis omitt ed) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev

. , 755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted )).

Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule.

Sipps , 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev

. , 26
A.3d 571, 574

- 75 (Pa. Cmwlth. 2011) (citation omitted)). “A claimant has good

cause if . . . h [is] actions are justifiable and reasonable under the circumstances.”
Grand Sport Auto Body v. Unemployment Comp. Bd. of Rev

. , 55 A.3d 186, 190 (Pa.
Cmwlth. 2012) (citation omitted) (quoting Docherty v. Unemployment Comp. Bd. of

Rev

. , 898 A.2d 1205, 1208

- 09 (Pa. Cmwlth. 2006)). Ultimately, “[t]he question of

whether conduct rises to the le vel of willful misconduct is a question of law to be
determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev

. , 105 A.3d
839, 844 (Pa. Cmwlth. 2014).4 Claimant argues that the UCBR erred by concluding that Employer met
its burden of proving that Claimant committed willful misconduct. Essentially,
Claimant argues that this Court should believe his version of the facts, i.e., that he
did nothing wrong. Employer rejoins that it established Claimant was discharged

because he violated Employer ’ s safe ty rules while operating a forklift on September
30, 2019 , and he failed to demonstrate good cause for his conduct.

At the Referee hearing, Cajamarca testified that , since April 2019, she and Gallagher had been working toward making Employer’s warehouse a safer

environment after the former Logistics Manager was fired . To that end, they
conducted weekly safety meetings and updated Employer’s Handbook in August
2019, which Claimant received

.

Cajamarca explained that, on September 30, 2019, as she, Gallagher
and Debarro were walking through the warehouse, Claimant “back[ed ] out of the
trailer on a forklift at a high speed without beeping his horn to back up and almost
hit Debarro[.]” N.T. at 7. Cajamarca estimated that Claimant’s speed was

app roximately 50 % to 75% faster than normal, and if they had not moved out of the
way, Claimant probably would have struck them. See N.T. at 8

- 11. She described

that Claimant got so close to Debarro, Debarro was able to touch the forklift with a
paper in hi s hand

. See N.T. at 8

- 9; see also C.R. at 82

.

Cajamarca recalled that , when she and Gallagher met with Claimant to
discuss the incident, Claimant denied violating Employer’s safety procedures and
further responded that he did not think anyone else was in the warehouse

, 5 and that
no one got hurt. See N.T. at 10

- 11. Cajamarca declared that Claimant was not
permitted to disregard Employer’s safety policies simply because he believed that

5 When the incident occurred

, Employer was conduct ing a m eeting at another warehou se, which most employees were attending. However, in addition to Claimant, a second forklift driver and Employer’s shipping and receiving clerk remained on the premises. See N.T. at 10. Cajamarca and Gallagher were returning from that meeting when this incident occurred.5

no one was in the warehouse. See N.T. at 10. Cajamarca stated that Claimant’s
employment was terminated for violat ing Employer’s forklift driver procedures due

to his excessive speed, and his failure to beep his horn and look back while exiting

the trailer on September 30, 2019

. 6 See N.T. at 10 ; see also C.R. at 25.

Gallagher confirmed Cajamarca’ s description of the steps they were
taking to make Employer’s warehouse safer, including conducting weekly safety
meetings. Gallagher testified regarding the September 30, 2019 incident

, that
Claimant exited the trailer in reverse at a faster rate of speed than she had observed
other employees do in similar circumstances. See N.T. at 12. Gallagher further

declared that Claimant did not beep his horn or look behind him, as Employer’s
safety guidelines require. See N.T. at 13. She recalled that Claimant a bruptly
stopped the forklift when Debarro yelled; otherwise, Claimant would have struck

Debarro. See N.T. at 13

- 14. Gallagher also described Claimant denying that he was
speeding, declaring that no one was supposed to be in the warehouse, and justifying
that no one got hurt. See N.T. at 14

- 15. She stated that Claimant’s responses did
not reflect an understanding that he had made poor decisions that day. See N.T. at

15.
Employer also presented the Handbook, which declared

, in pertinent

part:
By de ciding to work here, you agree to follow our rules:

While it is impossible to list everything that could be considered misconduct in the workplace, what is outlined here is a list of common

- sense infractions that could result in discipline, up to and inclu ding immediate termination of employment. . . .

6 The record contain s a narrative regarding a nother Claimant safety violation on October 1, 2019; however, Employer did not present evidence of that incident at the Referee hearing. See C.R. at 20.6 . . . .

• Refusal or failure to follow safety rules and procedures.

C.R. at 105

- 106. In the Safety and Loss Prevention portion of the Handbook,
Employer expressly prohibited employees from “[t]aking any act ion to place a
person in reasonable fear of imminent harm or offensive contact.” C.R. at 125. In
the Safety Guidelines to Prevent Accidents portion of the Handbook , Employer
specified the following rules, inter alia

, relative to use of company vehicles: “Do
Not Drive too fast for conditions,” “Do Not Fail to reduce speed,” “Do Not Fail to
yield,” “Do Not Back up improperly[.]” See C.R. at 129.

Claimant acknowledged that he received the Handbook and testified:

I was coming out of the trailer. Yes, I was looking back. I did honk the horn, but apparently they didn ’ t hear.

. . . [W] hen I came out of the trailer, I turned to the left . . . . I always turn close to the back doors because I’m going to turn and then go into the staging area to grab a pall et. When I made the turn, I saw [Debarro]. I pressed the brakes and stopped the lift right away.

N.T . at 17 ; see also N.T. at 18

. Claimant added :

[No] one ’ s supposed to be near that dock or they ’ re supposed to walk alongside the staging area in a line, not side

- by

- side, not

- they ’ re supposed to walk that way, if

we ’ re going to go by [s] afety [r] ules , number one. Number two, forklifts that were purchased and brought into this company were

-- we weren ’ t allowed to use until Eastern Lift came i n and preset the speeds on

-- and all the settings on it.

. . . Because once that setting is set, you can mash the pedal down, the lift is only going to go as fast as you ’ re allowing me to go in the warehouse [(approximately 10 miles per hour without a l oad )]

. So you cannot tell me that I was in excess

-- if you ’ re limiting my excess of speed. Saying that I went 50 or 75 [%] faster than the lift ’ s supposed to, it ’ s not possible because [Employer is] governing the speed.7

N.T . at 17; see also N.T. at 18

- 19

. In addition, Claimant declared that Employer had

not consistently enforce d its safety rules.

Based upon the evidence, the Referee denied Claimant UC benefits
pursuant to Section 402(e) of the Law, stating that Employer established that it h ad

reason able safety rules in place of which Claimant was aware and, based up on Employer’s witnesses’ credible testimony, Claimant ’ s conduct on September 30,

2019

, violated those safety rule s

. See Referee Dec. at 4; C.R. at 140. The Referee
further declared that, although Claimant testified that Employer did not consistently
enforce its safety rules, his mere allegation was insufficient to meet his burden of
establishing good cause for violating t hem

. See Referee Dec. at 2

- 3 ; C.R. at 138

-
139

. This Court has explained: “[T]he [UCBR] is the ultimate fact

- finder in
[UC] matters . . . . Where substantial evidence supports the [UCBR’s] findings, they
are conclusive on appeal.” Sipps , 181 A.3d at 484 (quoting Ductmate Indus., Inc. v.
Unemployment Comp. Bd. of Rev

. , 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations
omitted)). “Substantial evidence is relevant evidence upon which a reasonable mind

could base a conclusion.” Sipps , 181 A.3d at 484 (quotin g Sanders v. Unemployment
Comp. Bd. of Rev

. , 739 A.2d 616, 618 (Pa. Cmwlth. 1999)).

Here, the UCBR made the following findings :

1. [Employer] employed [C laimant ] through October 9, 2019, [] as a forklift operator.

2. [C laimant ] knew that [ Employer’s ] pol icy considered a safety violation to be a potentially terminable offense.

3. [C laimant ] knew that [Employer’s] safety procedures required him to use his horn when operating a forklift in

reverse. 4. On September 30, 2019, [C laimant ] backed his forklift out of a trailer at [an] excessive speed without using his8 horn and stopped abruptly before nearly striking a co [

- ] worker.

5. On October 9, 2019, [E mployer ] discharged [Claimant] for violating its safety policies on September 30, 2019.

C.R. Item 15, UCBR Op. at 1; C.R. at 193. The UCBR affirmed the Referee’s
decision, stating:

Through credible testimony and documentary evidence, [E mployer ] established that [Claimant] knew its safety policy required him to use his horn when operating a forklift in reverse, [a] violation of which was a potentially terminable offense.

[E mployer ] presented credible testimony that [C laimant ] did not use his horn when operating his forklift in reverse on September 30, 2019. Additionally, [C laimant ] operate d his forklift at [an] excessive speed and came dangerously close to striking a co [

- ] worker. Even absent a policy, such speed and proximity to an individual evidence [s] [C laimant ’s] reckless disregard of [E mployer ’ s ] interests. Whether [Claimant] expected others to be present or co [

- ] workers were oriented differently than expected does not change that [Claimant] violated a known policy. [C laimant ] has not credibly justified his conduct. UCBR Op. at 2; C.R. at 194.

Based upon this Court’s review of the record, there wa s substantial evidence to support the UCBR’s findings and conclusion s

. Thus , this Court holds
that the UCBR properly concluded Claimant committed willful misconduct without
good cause for doing so. Ac cordingly, th is Court discern s no error or abuse of
discretion by the UCBR in denying Claimant UC benefits under Section 402( e ) of

the Law.
For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ______ ANNE E. COV EY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edgar D. Montijo, :

Petitioner :

:

v. :

: Unemployment Compensation Board : of Review, : No. 389 C.D. 2020

Respondent :

O R D E R

AND NOW, this 21 st day of April , 20 2 1

, the Unemployment Compensation Board of Review’s January 2 4, 2020 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge