Opinion
No. 2015 C.D. 2011
06-07-2012
Eric Murphy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Eric Murphy (Claimant), pro se, petitions for review of the Order of the Unemployment Compensation Board of Review (Board) affirming the Decision and Order of the Unemployment Compensation Referee (Referee) finding Claimant ineligible for unemployment compensation (UC) benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Also before this Court for disposition is Claimant's "Application for Judgment" (Application).
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, "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work . . . ." Id.
Claimant was last employed as a full-time pickup and delivery driver for Roadway Express (Employer) from August 1996 through May 22, 2009, when he stopped working due to a work-related injury. Claimant was initially cleared to return to work on July 27, 2009. However, Claimant did not pass a mandatory Department of Transportation physical exam because the examining physician detected a heart murmur. Thus, Claimant could not return to work for Employer in July 2009. Claimant began attending business school full-time on August 8, 2009, and he anticipated receiving an associate's degree in January 2012. (Findings of Fact (FOF) ¶¶ 1-3, 9.)
While the Board's Decision/Order states that Claimant enrolled in business school on August 8, 2010, Claimant's testimony shows that he enrolled on August 8, 2009. (Hr'g Tr. at 15.)
Claimant was again cleared to return to work on December 28, 2009. Employer contacted Claimant on January 8, 2010 and told Claimant to return to work. Employer also contacted Claimant on January 12 and 13, 2010 and offered Claimant additional opportunities to work. Claimant did not return to work for Employer. When Claimant failed to report to work for five consecutive days, Employer discharged him. If Claimant had returned to work for Employer, he would not have been able to continue his education. (FOF ¶¶ 4-8, 10-11.)
After his discharge, Claimant filed for UC benefits with the Altoona UC Service Center (Service Center). The Service Center determined that Claimant was eligible for UC benefits pursuant to Section 402(e) of the Law. Employer appealed and a hearing was held before the Referee, at which both Claimant and Employer presented evidence. The Referee reversed the Service Center's determination and found Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law. Claimant appealed to the Board. (Notice of Determination at 1, R. Item 4; Hr'g Tr., R. Item 9; Referee's Decision/Order at 1-4, R. Item 10.) Upon review, the Board adopted the Referee's findings of fact and conclusions of law. (Board Decision/Order.) The Board further determined that:
The employer discharged the claimant for his failure to return to work. The claimant admits that he enrolled full time in business school on August 8, [2009] and was working toward earning his associate's degree by January of 2012. The claimant admits that he did not want to "mess up" his schooling by returning to work. The claimant has not established good cause for his failure to return to work. The Board does not credit the claimant's testimony that he failed to return to work due to health reasons.(Board Decision/Order.) Accordingly, the Board affirmed the Referee's decision. Claimant now petitions this Court for review.
By order mailed October 17, 2011, the Board denied Claimant's request for reconsideration. (Board Order, R. Item 14.)
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
We shall first address Claimant's Application. It appears Claimant filed the Application in response to the Board's March 13, 2012 notice to this Court that the Board would not be filing a brief in this matter. While Claimant cites to several different types of authorities, Claimant does not request any relief in his Application. To the extent Claimant is requesting that this Court enter "judgment" in his favor because the Board elected not to file a brief, we decline to do so. There is no requirement that the Board file a brief, as Respondent, in this matter. Moreover, while a brief in support of the Board's position may have been helpful to this Court, it is not necessary for the disposition of Claimant's appeal. Accordingly, Claimant's Application is denied.
See Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 552 Pa. 541, 545 n.4, 716 A.2d 600, 602 n.4 (1998) (noting appellees/respondents "are not necessarily required to file an appellate brief" pursuant to Pennsylvania Rule of Appellate Procedure 2188). Rule 2188 provides, in pertinent part, that an appellee/respondent may move for dismissal if an appellant/petitioner fails to timely file a brief; however, if an appellee/respondent fails to file a timely brief, he or she will be precluded from presenting oral argument. Pa. R.A.P. 2188.
In support of his Petition for Review, Claimant argues that the Board erred by failing to: (1) find that Employer did not provide a return to work form as required by the Workers' Compensation Act; (2) find that a verbal job offer is insufficient to prove job availability under the Workers' Compensation Act; (3) conclude that he was discharged in July 2009 in retaliation for filing a workers' compensation claim; (4) consider Employer's failure to produce Claimant's request to take a leave of absence for medical reasons; and (5) consider this matter pursuant to Section 402(b) of the Law.
Claimant indicates in his brief that he is appealing the Board's order mailed October 17, 2011, denying his request for reconsideration, and two orders of the Court of Common Pleas of Montgomery County. First, we point out that Claimant filed his Petition for Review seeking review of the Board's Order mailed August 25, 2011 on September 21, 2011, which is before the Board mailed its order denying his request for reconsideration. Thus, the Board's order mailed October 17, 2011, is not before this Court in this appeal. Second, with respect to the orders of the Court of Common Pleas of Montgomery County involving a civil action filed by Claimant against Employer, this Court does not have jurisdiction to consider Claimant's appeal of those orders. Such jurisdiction is vested in the Superior Court pursuant to Section 742 of the Judicial Code, 42 Pa. C.S. § 742. Moreover, an appeal from a determination of a government agency and from an order of a court of common pleas are governed by separate chapters of the Pennsylvania Rules of Appellate Procedure and cannot be combined into one appeal from a determination of a government agency. See Chapter 9 of the Pennsylvania Rules of Appellate Procedure, governing appeals from lower courts, and Chapter 15, governing judicial review of governmental determinations.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4, 2501 - 2708.
Section 402(b) provides, in relevant part, "[t]hat no otherwise eligible claimant shall be denied benefits for any week in which his unemployment is due to exercising the option of accepting a layoff, from an available position pursuant to a labor-management contract agreement, or pursuant to an established employer plan, program or policy." 43 P.S. § 802(b).
"Our Supreme Court defines willful misconduct as behavior that evidences a willful disregard of the employer's interest, a deliberate violation of the employer's work rules, or a disregard of the standards of behavior that the employer can rightfully expect from its employees." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 341 (Pa. Cmwlth. 2008) (citing Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997)). Whether a claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297, 299 (Pa. Cmwlth. 1991). The employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510, 512 (Pa. Cmwlth. 1982). Once the employer proves willful misconduct, "the burden of proof shifts to the claimant to prove that [he] had good cause for [his] actions." Owens v. Unemployment Compensation Board of Review, 748 A.2d 794, 798 (Pa. Cmwlth. 2000).
Initially, we note that Claimant has asserted numerous arguments based on Employer's alleged violations of the Workers' Compensation Act. However, those alleged violations are not on appeal before this Court, which is able to review only the Board's finding of ineligibility for UC benefits. The Board only has jurisdiction over UC appeals. The Board has no jurisdiction to determine whether an employer has violated the Workers' Compensation Act. We are, therefore, unable to review Claimant's allegations regarding Employer's alleged failures to comply with the Workers' Compensation Act in this appeal.
See Section 203(d) of the Law, 43 P.S. § 763(d) ("It shall be the duty of the board to hear appeals arising from claims for compensation . . ."). --------
Here, the Board found that Employer discharged Claimant. (FOF ¶ 11.) Claimant does not dispute this finding, but alleges that he was discharged in retaliation for filing a workers' compensation claim. Claimant alleges further that he had accepted a layoff pursuant to the collective bargaining agreement between Employer and the union; therefore, he is entitled to UC benefits pursuant to Section 402(b) of the Law.
The Board adopted the Referee's findings and conclusions that the Employer credibly established that the Claimant was asked to return to work after he recovered from his medical condition, that he refused to do so, and that Claimant failed to report to work or call Employer for five working days, which was why Employer discharged Claimant. The burden then shifted to Claimant to show good cause for his actions. The Board specifically found that Claimant admitted that "he did not want to 'mess up' his schooling by returning to work." (Board Decision/Order.) The Board did not credit Claimant's "testimony that he failed to return to work due to health reasons." (Board Decision/Order.) In adopting the Referee's findings and conclusions, the Board, like the Referee, rejected Claimant's testimony about other reasons he was discharged and did not return to work. The Referee had found that Claimant "gave evasive and vague answers when questioned." (Referee's Decision/Order at 2.)
We review the record to determine whether there is support for Claimant's contention that the Board erred. The law is clear that the Board is the ultimate finder of fact, and "questions of credibility and evidentiary weight" are matters for the Board as fact finder and not for a reviewing court. Freedom Valley Federal Savings & Loan Association v. Unemployment Compensation Board of Review, 436 A.2d 1054, 1055 (Pa. Cmwlth. 1981). As such, the Board is free to accept or reject the testimony of a witness regardless of whether there is corroborating evidence or whether the testimony is self-serving. The important factor is whether the Board's findings are supported by substantial evidence. "Substantial evidence is such relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion." Pearson v. Unemployment Compensation Board of Review, 954 A.2d 1260, 1264 (Pa. Cmwlth. 2008).
The Board determined that Claimant did not have good cause for his failure to return to work. Claimant testified that when Employer notified him that he could return to work, he "couldn't go back to work, what happened was I had to think about myself, I had to get [] enrolled in school on the August 8th . . . [of] 2009." (Hr'g Tr. at 15.) Claimant testified further that he was a full-time student attending classes during the day when Employer contacted him in January 2010 to return to work; therefore, he could not accept the night job offered by Employer. (Hr'g Tr. at 15-16.) Claimant testified that, due to his school schedule, he wanted to return to work for Employer at a modified-duty position; however, Employer refused to grant his request. (Hr'g Tr. at 16.) Lastly, Claimant testified that his main concern was "not to mess up [his] schooling." (Hr'g Tr. at 16.) The Board found this portion of Claimant's testimony credible. Accordingly, the Board's determination that Claimant did not establish good cause for his actions is supported by substantial evidence.
Claimant also argues that the Board erred by allegedly not considering Employer's failure to produce Claimant's request to take a leave of absence for medical reasons. However, the evidence that Employer provided (or did not provide) to support its position that Clamant was ineligible for UC benefits due to willful misconduct is for the Board to consider as an evidentiary matter. Evidentiary matters are within the Board's province, not this Court's limited scope of review. Freedom Valley, 436 A.2d at 1055. In addition, the Board did not credit Claimant's "testimony that he failed to return to work due to health reasons." (Board Decision/Order.) Although Claimant stated that he wanted to return to modified work, he also testified that his doctor told him he was fine and that he did not tell Employer that he could not do the job or did not want the job. (Hr'g Tr. at 15, 18.) Thus, there is support for the Board's finding that Claimant did not refuse the job, or take a leave of absence, for medical reasons.
Accordingly, we must affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, June 7, 2012, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is AFFIRMED. It is further ordered that Eric Murphy's "Application for Judgment" is DENIED.
/s/ _________
RENÉE COHN JUBELIRER, Judge