IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shiloh Homecare Corporation : d/b/a ComForCare : No. 1964 C.D. 2015 Senior Services

- York County, : Submitted: February 26, 2016
: Petitioner :

: v. :

: Unemployment Compensation : Board of Review, : : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: May 18, 2016

Shi loh Homecare Corporation d/b/a ComForC are Senior Services

– York County (Employer) petitions for review of the September 25, 2015 order of the Unemployment Compensation Boa rd of Review (Board)
, affirming a referee’s
decision and holding that Tierra Washing ton (Claimant) was not ineligible for

unemp loyment compensation benefits under Section 402(e) of the Unemployment Compens ation Law (Law)

. 1 We affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended
, 43 P.S. §802(e), which provides that an employee shall be ineligible for compensation for any week in which her unemployment is due to her discharge or temporary suspension from work for willful misconduct connected with her work.2 Claimant was employed by Employer as a full

- time home health aide from July 30, 2011 to April 10, 201 5, earning $9.75 per hour

. Employer’s policy requires employees to call Employer fifteen minutes before the start of a shift to report a tardiness. The policy provides that three occurrences of tardiness within ninety days will result in an employee’s disch arge. Employees receive two
counseli ngs, either verbal or writt e n, prior to being discharged. Findings of Fact
Nos.1

- 4

. On January 16, 2015, Claimant was counseled for tardiness and for failing to use the client’s phone to clock

- in to work. She was counseled for the same reasons on February 23, 2015, and April 7, 2015. On April 10, 2015, she received a final counseling after being tardy three times in one week, and she was
advised that one more instance of tardiness would result in her disch arge. Findings
of Fact Nos. 5

- 8

.

Claimant’s car broke down in November 2014 and she could not afford to purchase another one. Claimant notified Employer about her transportation problem. After November 2014, Claimant relied on her mother and
friends to take her to and from work , and they were not always reliable. Findings
of Fact Nos. 9

- 11

.

On April 13, 2015, Claimant’s transportation was late. She called Employer two minutes before the start of her shift and advised Employer she
would be late due to her transportation issues. Claimant was late to work, and Employer discharged her that day for excessive tard iness. Findings of Fact Nos.
12

- 14

.3 T he local service center determined that Claimant was not ineligible for unemployment benefits, and Employe r appealed. A referee conducted a hearing at which Claimant and Jennifer Foley (Foley), Employer’s owner
, testified.

Foley described Employer’s policies and said that Claimant was
aware of them

. Reproduced Record (R.R.) at 60a

- 61a. Foley stated that E mployer
counseled Claimant on January 16, 2015, February 23, 2015, and April 7, 2015, for

tar diness and for failing to use the client’s phone to clo ck

- in to work

. Fol ey testified that Employer gave Claimant a written warning on April 10, 2015, informing her that she had three tardies within one week and that one more tardy
would result in her termination. Foley said that Clai mant signed this document.
R.R. at 62a. Foley testified that on April 13, 2015
, Claimant’s shift wa s to start at
9:00 a.m

. Foley said that Claimant called sometime between 9:10 a.m. and 9:20

a.m. to report that she was late for work because her ride did not show up

. Foley stated that Employer sent a replacement for Claimant at 9:30 a.m. R.R. at 62a

- 6 3a. Foley stated that this final incident was written up as “late for work” which
resulted in Claimant’s termination. Foley complained that Claimant was late 29 times after she was counseled on January 12, 2015. However, Foley testified that
if Claimant had not been late on April 13, 2015, she would not have been fired.
R.R. at 65a. Claimant testified that she began working for Employer , Mondays through Thursday s for a 36

- hour week. After eighteen months, Claimant’s client became ill, and Claimant was assigned to work an additional eight hours on Friday.
R.R. at 59a. Claimant said that her client’s daughter met her every morning and updated Claimant on her client’s condition. Claimant added that the daughter also4

worked, and Claimant often spoke with her before calling Employer to clock

- in. 2
R.R. at 68a

- 69a.

Claimant stated that she lost her means of transportation in November 2014 when her car broke down, and that she could not afford to buy another car. Claimant explained that she supported a family of three on her salary, which had just reached $9.75 an hour in 2015. Claimant said that she depended on rides
, which were not always reliable, from family and friends to get to work and get her
children to two different places for daycare. Claima nt stated that she explain ed her transportation difficulties to Employer. R.R. at 68a

- 69a.

Concerni ng the April 13, 2015 incident
, Claimant testified that she called Employer at 8:58 a.m., two minutes before the start of her shift, to advise Employer tha t she would be late for work because her transportation was late picking her up. R.R. at 70a

- 71a.

In a June 12, 2015 decision, the referee issued the findings summarized above and concluded that Claimant was not ineligible for benefits due
to willful mis conduct. The referee recognized that Claimant was discharged for excessive tardiness, but credited Claimant’s testimony that she lost her means of transportation, could not afford a new car, and had to depend on others who were not always reliable to prov ide her transportation to and from work. The referee concluded that while Employer certainly had the right to discharge Claimant, the facts did not establish a basis to deny benefits. Employer appealed to the Board
which affirmed the referee’s decision a nd adopted the referee’s findings and
conclusions.

2 Claimant worked for the same client Mondays through Thursdays from January 2015 until the client’s death in April 2015. R.R. at 66a.5 On appeal to this Court, 3 Employer argues that the Board erred in concluding that Claimant’s habitual tardiness and her actions on April 13, 2015
, did not constitute willful misconduct

. Employer asserts that the Board also erred in determining that Claimant’s continued reliance on an unreli able mode of transportation constituted good cause for her conduct.

An employer bears the burden to demonstrate that a claimant is ineligible for unemployment compensation benefits due to willful misconduct. Holomshek v. Unemployment Compensation Board of Rev iew, 395 A.2d 708 , 709 ( Pa. Cmwlth. 1979). The Law does not define “willful misconduct,” but our cou r ts have defined it as including: an act of wanton or willful disre gard of the employer’s interest; a deliberate violation of the empl oyer’s rules; a disregard of standards of behavior which the employer has a r ight to expect from an employee;
and negligence indicating an intentional disregard of the employer ’s interest, or of the employee’s duties and obligations to the employer. Altemus v. Unem ployment Compensation Board of R eview, 681 A. 2d 866, 869 (Pa. Cmwlth. 1995). Where the allegation of willful misconduct is based on a violation of the employer’s wor k rule, the employer must show the existence of a reasonable work rule and the
claimant’s violation of the rule. Williams v. Unemployment Compensation Board of Review , 926 A.2d 568, 57 1 (Pa. Cmwlth. 2007). Once the employer meets its burden, the burden s hift s to the claimant to establish good cause for her conduct. Henderson v. Unemployment Compensation Board of Review , 77 A.3d 699, 719 (Pa. Cmwlth. 2013).

3 Our scope of review is limited to determining whether constitutional rights have been violated, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Schneider v. Unemployment Compensation Board of Review
, 12 A.3d 754, 756 n.1 (Pa. Cmwlth. 2010).6 Here, Employer established that Claimant was discharged for
excessive instances of tardiness in vi olation of Employer’s policy. The burden
then shifted to Claimant to establ ish good cause for her conduct.

Employer characterizes the reason for Claima nt’s tardiness as her failure to secure reliable transportation. Citing Spicer v. Commonwealth , 407 A.2d
929 , 931 n.2 (Pa. Cmwlth. 1979), Employer argues that Claimant’s continued reliance on transportation that she knew was not reliable constituted willful
misconduct.
In Spicer , we observed that a claimant who was late because of a series of transporta tion problems beyond his control would not be ineligible for
benefits due to willful misconduct

. There, the claimant , who had a history of tardiness and absenteeism, did not own a car and relied on fellow employees for rides to work, which were not always available. The Board held that he was discharged for tardiness and ineligible for benefits under Section 402(e), but the
Board did not address the claimant’s reasons for his lateness. We vacated the Board’s holding and remanded for the Board to determin e whether the claimant’s explanation was credible and established good cause

. Id. at 931. Thus, the holding
in Spicer does not support Employer’s argument and Employer’s reliance on Spicer is misplaced.

Claimant contends that her financial situation is similar to that of the
claimant in Bell Socialization Services, Inc. v. Unemployment Compensation Board of Review , 74 A.3d 1146 (Pa. Cmwlth. 2013)

. In Bell , we affirmed the
B oard’s finding that the claimant established good cause for violating the employe r’s work rule that required employees to have reliable transportation. Working as a full

- time residential service p rovider, earning $9.00 per hour, t he7

claimant possessed a car which eventually failed mechanically. Although she made subsequent arrangemen ts to borrow her mother’s car, th is car was lost to an
accident. We held that, b ecause her vehicle complications were unforeseen and
she did not have sufficient income to repair her car or purchase a new one , the claimant established good cause for violating the employer’ s work rule and was not ineligible for unemployment benefits. Id . at 1148

- 49.

Employer argues that Bell does not apply because Claimant did not establish that it was impossible to secure reliable transportation. (Employer’s b rief at 3). However, Employer does n ot challenge the Board’s finding that Claimant could not afford to buy another car. Additionally, Claimant testified that her children are taken to different daycares before Claimant reports for work at a
client’s home. We conclude that while Employer was justified in discharging Claimant based on her tardiness, the record does not support a denial of ben e fits. 4

Accordingly, we affirm the Board’s order.

MICHAEL H. WOJCIK, Judge

4 See Adept Corporation v. Unemployment Compensation Board of Review , 437 A.2d 109, 111 (Pa. Cmwlth. 1981) (although the employer was justified in discharging the claimant, the claimant established good cause for his absence because of car problems requiring mechanical attention).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shiloh Homecare Corporation : d/b/a ComForCare : No. 1964 C.D. 2015 Senior Services

- York County, : : Petitioner :

: v. :

: Unemployment Compensation : Board of Review, : : Respondent :

O R D E R

AND NOW, this 18 th day of May , 2016, the order of the Unemployment Compensation Board of Review, dated September 25, 2015, is
affirmed.

__________________________________ MICHAEL H. WOJCIK, Judge