M.O. Roethlein v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin O. Roethlein, :
Petitioner :
:
v. : No. 1102 C.D. 2020
: Submitted: October 21, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: February 24, 2023
Martin O. Roethlein (Claimant), pro se, petitions for review of the October 2,
2020 order of the Unemployment Compensation Board of Review (Board), which
reversed the referee’s decision and concluded he was ineligible for unemployment
compensation (UC) benefits due to willful misconduct under Section 402(e) of the
Unemployment Compensation Law.1 After careful review, we affirm.
I. Background and Procedural History
On February 27, 2020, the Duquesne UC Service Center issued a notice of
determination, concluding that Claimant was ineligible for UC benefits due to willful
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
misconduct. Certified Record (C.R.), Item No. 4, Notice of Determination, 2/27/20,
at 1. The notice indicated Henne, Inc. (Employer) discharged Claimant for violating
its attendance policy. Id. The notice indicated Claimant was aware of the policy,
Employer had previously warned Claimant about the policy, and Claimant admitted
to violating the policy. Id. In addition, Claimant did not show good cause for
violating the policy. Id.
Claimant appealed to a UC referee, who held a telephone hearing on April 20,
2020. At the time scheduled for the hearing, the referee successfully placed phone
calls to Claimant and his representative, but the call to Employer went to voicemail.
C.R., Item No. 9, Notes of Testimony (N.T.), 4/20/20, at 1-2. As a result, Claimant
was the only witness to testify during the hearing. Claimant testified he worked for
Employer as a jeweler beginning on October 7, 2019.2 Id. at 5. Claimant testified
he had to stop working after December 23, 2019, however, due to sciatica. Id. at 6-
7. He described his medical treatment for this condition, including treatment at a
pain management clinic and trips to the hospital. Id. at 7. Claimant insisted he was
a reliable employee who was never late or missed work until he began suffering from
sciatica.3 Id. at 6-7. On April 21, 2020, the referee issued a decision reversing the
UC Service Center’s notice of determination. C.R., Item No. 10, Referee’s Decision,
4/21/20, at 3 (unpaginated). The referee reasoned that Employer did not participate
in the hearing, despite receiving notice, and that there was no competent evidence in
the record to demonstrate willful misconduct. Id. at 2.
2
Claimant’s employment was part time. C.R., Item No. 2, Claimant Questionnaire, 2/10/20.
3
As discussed in greater detail below, Employer terminated Claimant’s employment on January
29, 2020. C.R., Item No. 3, Employer Questionnaire, 2/10/20.
2
Employer filed a petition for appeal to the Board, in which it requested a new
hearing. Employer averred that its representative was waiting for the referee’s phone
call on April 20, 2020, but that she did not receive a call for unknown reasons. C.R.,
Item No. 11, Employer’s Petition for Appeal with Attachments, 4/30/20, at 84, 110.4
The Board issued an order on June 18, 2020, remanding for another hearing. C.R.,
Item No. 14, Board Hearing Order, 6/18/20, at 1 (unpaginated). The order explained
that the purpose of the remand was to allow Employer to present evidence addressing
its lack of participation on April 20, 2020. Id. Moreover, the order explained that
the parties could present additional evidence on the merits of the case, but that the
Board would not consider the evidence unless it found Employer had proper cause
for its non-participation. Id.
The referee held a second telephone hearing on July 9, 2020. This time, the
referee successfully placed phone calls to Claimant and his representative, as well
as Employer’s controller, Suzanne Bindseil (Bindseil). The referee heard testimony
from Bindseil regarding Employer’s failure to participate in the hearing on April 20,
2020, after which Bindseil and Claimant presented testimony addressing the merits
of Claimant’s request for UC benefits.
Regarding Employer’s failure to participate in the hearing on April 20, 2020,
Bindseil testified the referee’s phone call “did not come through.” C.R., Item No.
16, N.T., 7/9/20, at 4. Bindseil explained that she made efforts to contact the referee
after she did not receive a phone call, which included sending email and making two
calls herself, which proved unsuccessful. Id. Regarding her second attempt to call
the referee, she testified: “I called the office again. I spoke with a woman who said
that you, [referee], were in the office, that she would pass the message along to you.
4
Employer’s petition for appeal and its attachments lack pagination. For ease of review, when
citing to Employer’s petition for appeal, we use the overall pagination of the certified record.
3
I heard nothing back after that.” Id. Bindseil testified April 20, 2020, was the first
day she was able to return to Employer’s store after it closed temporarily due to the
COVID-19 pandemic. Id. She explained that Employer was “moving” its phone
system because it was “forwarding to another phone,” and she “was assured by the
person who was doing it that it was all ready to go.” Id. Bindseil nonetheless agreed
on cross-examination that Employer’s phones may not have been set up correctly,
saying: “That was probably the case. I do not know. I did not set the phones up.”5
Id. at 6.
Regarding the merits of the case, the parties presented only brief testimony.
Bindseil testified that Employer discharged Claimant because he failed to return to
work and did not inform Employer when he would be able to return to work or when
his doctors cleared him to return to work. Id. at 7. In addition, Claimant failed to
inform Employer what accommodations he might need. Id. Claimant countered that
he was unable to provide Employer with a date when he could return to work because
his doctor’s office “didn’t have a date.” Id. at 9. When Bindseil pressed Claimant
on cross-examination why he could not obtain a return date at a doctor’s appointment
on January 27, 2020, Claimant insisted that he told Bindseil he “would be back on
the 28th, whether [he was] in extreme pain or not.” Id. at 10.
Because the parties’ testimony was so brief, the most important evidence on
the merits was Employer’s petition for appeal from the April 21, 2020 decision,
5
Based on his cross-examination of Bindseil, Claimant’s representative lodged an “objection to
strike any further testimony or evidence from the [e]mployer.” C.R., Item No. 16, N.T., 7/9/20, at
6. Claimant’s representative expressed his understanding, however, that “the Board probably has
to rule on that,” and the referee explained that he would “go over” the objection and hear further
testimony. Id. The Board did not specifically rule on the request to strike but, as we summarize
below, concluded Employer had good cause for failing to participate in the April 20, 2020 hearing,
and considered evidence from both the April 20, 2020 and July 9, 2020 hearings when reaching
its decision.
4
which the referee entered into the record without objection. See C.R., Item No. 16,
N.T., 7/9/20, at 4; C.R., Item No. 11, Employer’s Petition for Appeal with
Attachments, 4/30/20. Employer attached documentation to its petition detailing
Claimant’s unexcused absences, including a letter terminating Claimant’s
employment, emails between Employer and Claimant, medical documents related to
Claimant’s absences, Employer’s company policy warning that excessive absences
or absences without notice could result in termination, and a spreadsheet compiling
Employer’s communications with Claimant from December 23, 2019, to January 29,
2020.
In summary, Employer’s attachments indicate that Claimant’s last day at work
was on December 23, 2019. C.R., Item No. 11, Employer’s Petition for Appeal with
Attachments, 4/30/20, at 100, 109, 126, 135. Claimant informed Employer he would
“[p]robably” be out sick on December 27 and 28, 2019, and Claimant did not report
for work on those days. Id. at 98, 109, 124, 135. Employer then sent Claimant an
email on December 28, 2019, asking if he would be “unable to come in” due to his
illness and a voicemail asking him to return the call. Id. Claimant did not reply and
was absent without notice on December 30, 2019, his next scheduled workday. Id.
at 109, 135. On January 2, 2020, Claimant emailed and called Employer to explain
he had a doctor’s appointment and would not be in for work on January 3, 2020. Id.
Claimant missed eight scheduled workdays without notice after January 3, 2020,
which occurred between January 4, 2020, and January 20, 2020. Id. During that
time, Employer sent Claimant two emails and left a voicemail, inquiring about his
availability and again asking for a return call. Id. at 99-100, 109, 125-26, 135.
On January 21, 2020, Employer sent Claimant an email warning that he must
respond by the afternoon of January 22, 2020, or that Employer would “consider it
5
job abandonment.” Id. at 100, 109, 126, 135. Claimant timely replied, explaining
he was in the hospital and was “[n]ot sure yet” when he could return to work. Id. at
101, 109, 127, 135. He also apologized that he had not “been in touch for a[]while.”
Id. Employer requested that Claimant provide, by January 24, 2020, “documentation
outlining that you have been seen and when you will be able to return to work (and
if there were an [sic] limitations while working) with contact information for the
office included.” Id. Claimant sent Employer two emails on January 24, 2020, in
which he forwarded medical documentation6 and indicated he had an appointment
on January 27, 2020, at which he would receive any work limitations. Id. at 103-04,
109, 129-30, 135. On January 27, 2020, Claimant sent an email saying he “[g]ot a
shot today so I will be there Friday with or without pain.” Id. at 105, 109, 131, 135.
This was the last communication between the parties before Employer sent a letter
to Claimant terminating his employment, dated January 29, 2020. Id. at 95, 121.
On October 2, 2020, the Board issued the order on appeal, in which it reversed
the referee and deemed Claimant ineligible for UC benefits. Regarding Employer’s
failure to participate in the April 20, 2020 hearing, the Board found that the hearing
“occurred on the first day that . . . [E]mployer reopened following closure related to
COVID-19 and its phone system malfunctioned.” C.R., Item No. 17, Board’s Order,
10/2/20, at 2. Thus, the Board concluded that Employer had proper cause for failing
to participate in the hearing and explained that it would base its decision on evidence
presented at both the April 20, 2020 and July 9, 2020 hearings.
6
Although Employer did not attach Claimant’s medical documentation to its petition for appeal,
Claimant attached it to his Claimant Questionnaire. The documentation is not detailed but implies
that Claimant was admitted to a hospital from January 16, 2020, to January 24, 2020, for “back
pain.” C.R., Item No. 2, Claimant Questionnaire, 2/10/20, at 7 (unpaginated).
6
Regarding the merits of Claimant’s request for UC benefits, the Board found
that Claimant suffered sciatica and obtained medical treatment. Id. at 1. In addition,
although Claimant informed Employer he would be out sick on December 27 and
28, 2019, the Board found that he did not call off from December 29, 2019, through
January 21, 2020.7 Id. The Board explained that Claimant did not have good cause
for failing to call off for those days, because he “offered no credible explanation for
why his condition prevented him from reporting his absences to the employer over
approximately a three[-]week period.” Id. at 3. Furthermore, the Board observed
that Employer and Claimant exchanged emails on January 21 and 22, 2020, in which
Employer asked Claimant to provide documentation indicating when he could return
to work and describing any work limitations. Id. at 2. Following an appointment on
January 27, 2020, Claimant informed Employer he had seen a doctor and planned to
return to work, but he did not indicate his doctor released him to return to work or
whether the doctor imposed any work limitations. Id. Based on these factors, the
Board concluded that Claimant engaged in willful misconduct under Section 402(e).
Id.
Claimant, now acting pro se, filed a petition for review in this Court. Claimant
challenges the Board’s conclusions that (1) Employer had good cause for its failure
7
The Board’s findings contain a slight error, as they do not acknowledge that Claimant called off
work for January 3, 2020. Employer’s documentation indicates Claimant called off work for that
day, and there was no basis for the Board to reject this admission on the part of Employer and find
otherwise. See C.R., Item No. 11, Employer’s Petition for Appeal with Attachments, 4/30/20, at
109, 135. Nonetheless, January 3, 2020, was only one absence from work among many, and the
Board’s erroneous finding of fact is not necessary to sustain its decision. As a result, the Board’s
error was harmless. See Hauck v. Unemployment Comp. Bd. of Rev., 271 A.3d 961, 971 (Pa.
Cmwlth. 2022) (collecting cases).
7
to participate in the April 20, 2020 hearing, and (2) he committed willful misconduct
under Section 402(e).8
II. Discussion
This Court reviews orders granting or denying UC benefits for violations of
the petitioner’s constitutional rights, violations of agency practice and procedure, or
other errors of law. 2 Pa.C.S. § 704. We also review whether substantial evidence
supports the findings of fact necessary to sustain the decision. Id. The Board is the
ultimate factfinder in these cases and entitled to assess witness credibility and weight
of the evidence. Hubbard v. Unemployment Comp. Bd. of Rev., 252 A.3d 1181, 1185
n.2 (Pa. Cmwlth. 2021) (citing Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d
1383, 1388 (Pa. 1985)). Thus, we view the evidence in a light most favorable to the
party that prevailed before the Board, drawing all logical and reasonable inferences
to determine if substantial evidence exists. Sweeney v. Unemployment Comp. Bd. of
Rev., 74 A.3d 1175, 1177 n.1 (Pa. Cmwlth. 2013) (citing Taylor v. Unemployment
Comp. Bd. of Rev., 378 A.2d 829, 831 (Pa. 1977)). If substantial evidence supports
the Board’s findings, they are binding on appeal. Allen v. Unemployment Comp. Bd.
8
Claimant lists five separate questions in his statement of questions involved, but presents each
question simultaneously in the argument section of his brief. Moreover, Claimant does not include
any citations to legal authority in his argument section. The only legal citations in Claimant’s brief
appear in the statement of jurisdiction and table of citations. Pennsylvania’s Rules of Appellate
Procedure direct that a petitioner divide the argument section of his or her brief “into as many parts
as there are questions to be argued” and “have at the head of each part--in distinctive type or in
type distinctively displayed--the particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). “[W]here an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is waived.” Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations omitted). Nonetheless, because we can discern
the issues Claimant wishes to raise, we will liberally construe his pro se brief and reach the merits
of this appeal. See Smithley v. Unemployment Comp. Bd. of Rev., 8 A.3d 1027, 1029 n.6 (Pa.
Cmwlth. 2010) (citing Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999)).
8
of Rev., 189 A.3d 1128, 1133 (Pa. Cmwlth. 2018) (citing Kelly v. Unemployment
Comp. Bd. of Rev., 776 A.2d 331, 336 (Pa. Cmwlth. 2001)).
A. Proper Cause for Employer’s Failure to Appear
Initially, Claimant challenges the Board’s determination that Employer had
proper cause for its failure to participate in the initial hearing on April 20, 2020.
Claimant argues this determination was without evidentiary support, since Bindseil
did not testify Employer’s phones were “malfunctioning.” Claimant’s Br. at 7-10.
He also argues the Board should have granted his representative’s request to strike
evidence from Employer regarding the merits of the case, since Employer did not
have proper cause. Id. at 8. Claimant’s argument relates to Section 101.24(a) of the
Board’s regulations, 34 Pa. Code § 101.24(a), which directs that, if a party who failed
to attend a hearing “subsequently gives written notice, which is received by the
tribunal[9] 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.”
Although Claimant is correct that Bindseil did not testify Employer’s phones
were “malfunctioning” or “malfunctioned” on April 20, 2020, we are satisfied that
the Board used this terminology merely as an informal way of saying the phones did
not receive the referee’s call due to unanticipated technical problems. Significantly,
this Court has cautioned the Board against faulting parties for missed calls in similar
circumstances. In Walthour v. Unemployment Compensation Board of Review, 276
A.3d 837, 840 (Pa. Cmwlth. 2022), a UC referee called a claimant for a scheduled
hearing but received a message indicating the claimant’s phone did “not accept calls
from numbers with caller ID blocked.” The Board found that the claimant lacked
9
The regulations define “tribunal” as “[t]he Board or one of its referees.” 34 Pa. Code § 101.2.
9
proper cause for her unavailability. Id. at 840-41. We remanded for a new hearing,
rejecting the Board’s position “that parties are responsible for their own technology
and in charge of their phone and incoming calls.” Id. at 845 (citing O’Leary v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 984 C.D. 2020, filed Oct. 27,
2021) (unreported)). In addition, we emphasized that the claimant was waiting for
the referee’s call at the time of the hearing and tried to contact the referee when she
did not receive a call. Id.
Similarly, Bindseil testified in this matter that she did not receive the referee’s
call, due “probably” to difficulties setting up Employer’s phone system. C.R., Item
No. 16, N.T., 7/9/20, at 4-6. She explained that April 20, 2020, was the first day she
was able to return to Employer’s store after it closed due to COVID-19, which may
have contributed to the issue. Id. at 4. Bindseil also testified she was awaiting the
referee’s call at the time of the hearing and tried to contact the referee when she did
not receive a call. Id. Bindseil supported her testimony with documentary evidence,
including copies of emails she sent in an attempt to contact the referee. C.R., Item
No. 11, Employer’s Petition for Appeal with Attachments, 4/30/20, at 92-94, 118-
20. As the factfinder, the Board was free to credit Bindseil’s testimony and evidence.
Hubbard, 252 A.3d at 1185 n.2 (citing Peak, 501 A.2d at 1388); see also McNeill v.
Unemployment Comp. Bd. of Rev., 511 A.2d 167, 169 (Pa. 1986) (explaining, under
Section 101.24(a), that: “[T]he Board must make an independent determination that
the reasons set forth constitute proper cause.”). Thus, we conclude that Claimant’s
challenge to the Board’s proper cause finding is meritless.
B. Willful Misconduct
Claimant next challenges the Board’s conclusion that he was ineligible for UC
benefits due to willful misconduct. Generally, Claimant emphasizes the severity of
10
his sciatica and questions Employer’s motives for opposing his attempt to obtain UC
benefits. Claimant’s Br. at 7-9. With respect to his alleged absenteeism, he argues
he could not provide Employer with a specific date for his return to work because
his doctors could not predict a date. Id. Claimant nonetheless insists he provided
Employer with updates about his medical condition and indicated he would return
to work on January 28, 2020. Id. at 9. He also questions the evidence underlying
the Board’s decision, arguing it improperly relied on documents the referee excluded
as hearsay. Id. at 8-10.
Section 402(e) directs that a claimant will be ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful
misconduct connected with his work, irrespective of whether or not such work is
‘employment.’” 43 P.S. § 802(e). Case law defines “willful misconduct” as:
an act of wanton or willful disregard of the employer’s interest, a
deliberate violation of the employer’s rules, a disregard of standards of
behavior which the employer has a right to expect of an employee, or
negligence indicating an intentional disregard of the employer’s interest
or of the employe[e]’s duties and obligations to the employer.
Myers v. Unemployment Comp. Bd. of Rev., 625 A.2d 622, 625 (Pa. 1993) (quoting
McLean v. Unemployment Comp. Bd. of Rev., 383 A.2d 533, 535 (Pa. 1978)).
The employer bears the burden of proving that the claimant committed willful
misconduct. Grand Sport Auto Body v. Unemployment Comp. Bd. of Rev., 55 A.3d
186, 190 (Pa. Cmwlth. 2012) (en banc) (citing Docherty v. Unemployment Comp.
Bd. of Rev., 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006)). If the employer satisfies this
initial hurdle, the burden shifts to the claimant to establish good cause for his or her
actions. Id. (citing McKeesport Hosp. v. Unemployment Comp. Bd. of Rev., 625
A.2d 112, 114 (Pa. Cmwlth. 1993)). Good cause exists where the claimant’s actions
11
“are justifiable and reasonable under the circumstances.” Id. (quoting Docherty, 898
A.2d at 1208-09).
“Excessive absenteeism or tardiness may constitute willful misconduct.” Id.Even if an employer does not have a work rule in place, this Court has characterized
the habitual failure to arrive for work on time and when scheduled as “inimical to an
employer’s interest” and contrary to the standards of behavior that an employer has
the right to expect. Ellis v. Unemployment Comp. Bd. of Rev., 59 A.3d 1159, 1163
(Pa. Cmwlth. 2013) (quoting Fritz v. Unemployment Comp. Bd. of Rev., 446 A.2d
330, 333 (Pa. Cmwlth. 1982)). Illness is a good cause defense to willful misconduct
due to absenteeism. Owens v. Unemployment Comp. Bd. of Rev., 748 A.2d 794, 798
(Pa. Cmwlth. 2000) (citing McKeesport Hosp., 625 A.2d at 114). A claimant’s
illness will not establish good cause, however, where the claimant fails to properly
report his or her absences. See Schlappich v. Unemployment Comp. Bd. of Rev., 485
A.2d 855, 857 (Pa. Cmwlth. 1984) (citing Manatawny Manor v. Unemployment
Comp. Bd. of Rev., 401 A.2d 424 (Pa. Cmwlth. 1979)); Gelles v. Unemployment
Comp. Bd. of Rev., 452 A.2d 91, 92 (Pa. Cmwlth. 1982) (citing Gochenauer v.
Unemployment Comp. Bd. of Rev., 429 A.2d 1246, 1248 (Pa. Cmwlth. 1981)).
In this matter, Employer presented documentation, including emails between
Claimant and Employer, revealing that Claimant was repeatedly absent from work.
Employer therefore met its initial burden by establishing that Claimant engaged in
conduct contrary to its interests and disregarded standards of behavior it had the right
to expect. Ellis, 59 A.3d at 1162-63. Moreover, although Claimant may have missed
work due to illness, Employer’s documentation reveals that he failed to demonstrate
12
good cause, because he did not report many of his absences.10 See Schlappich, 485
A.2d at 857 (citing Manatawny Manor, 401 A.2d 424).
Employer’s documentation indicates Claimant called off work for December
27 and 28, 2019, and failed to appear for work without calling off on December 30,
2019. C.R., Item No. 11, Employer’s Petition for Appeal with Attachments, 4/30/20,
at 98, 109, 124, 135. Claimant called off work again for January 3, 2020, but,
thereafter, made no contact at all until Employer sent an email threatening to
terminate his employment on January 21, 2020. Id. at 100, 109, 126-27, 135. In
total, Claimant had nine unreported absences from work, eight of which occurred
during the two and one-half weeks between January 3, 2020, and his belated
response to Employer on January 22, 2020. Id. at 109, 135. Claimant failed to report
these absences despite Employer’s requests for an update and its policy warning that
excessive absences or absences without notice could result in termination. Id. at 98-
100, 108-09, 124-26, 134-35. Claimant acknowledged this lack of contact in his
response on January 22, 2020, apologizing that he had not “been in touch for
a[]while.” Id. at 101, 109, 127, 135.
It is important to add that Claimant’s limited communications would not have
alerted Employer that he would be absent from work for any extended time. Before
Claimant’s absence on December 27 and 28, 2019, he merely informed Employer
that he had “been sick lately” and would “[p]robably” be out. Id. at 98, 109, 124,
135. When Claimant called off work for January 3, 2020, he informed Employer
that he had an appointment at a pain clinic “with the doctor who works on my back,”
10
Regarding Claimant’s argument that the Board improperly considered hearsay documents, our
review of the record reveals that Claimant’s representative objected only once during the hearing
on April 20, 2020, to the letter terminating Claimant’s employment, but that he did not object to
any of the documentation Employer presented during the hearing on July 9, 2020, which included
the same letter. C.R., Item No. 16, N.T., 4/20/20, at 4-5; C.R., Item No. 16, N.T., 7/9/20, at 4.
13
and that he may receive a cortisone shot. Id. at 109, 135. Further, our review of the
record supports the Board’s finding that Claimant “offered no credible explanation
for why his condition prevented him from reporting his absences” by placing a
phone call or sending an email between January 3, 2020, and January 22, 2020. See
C.R., Item No. 17, Board’s Order, 10/2/20, at 2 (emphasis added). When Employer
sent an email threatening to terminate Claimant’s employment, he was able to
respond the very next day. Id. at 101, 109, 127, 135.
As we emphasized above, it was within the Board’s purview as the factfinder
in this matter to credit Employer’s evidence. Hubbard, 252 A.3d at 1185 n.2 (citing
Peak, 501 A.2d at 1388). Although Claimant urges this Court to view the evidence
in a manner favorable to him, we must view the evidence in the light most favorable
to Employer as the prevailing party before the Board. Sweeney, 74 A.3d at 1177 n.1
(citing Taylor, 378 A.2d at 831). Accordingly, Claimant’s challenge to the Board’s
willful misconduct determination does not entitle him to relief.11
11
As Claimant’s failure to properly report his repeated absences was a sufficient basis for the
Board’s willful misconduct determination, we need not consider the Board’s additional reasoning
that Claimant did not produce documentation from a doctor establishing when he was cleared to
return to work and what his work limitations might be. We do, however, note that our review
indicates Employer requested this documentation for the first time on January 22, 2020, gave
Claimant only two days to comply, and terminated his employment a week after its initial request,
on January 29, 2020, even though Claimant had produced at least some documentation. See
Klampfer v. Unemployment Comp. Bd. of Rev., 182 A.3d 495, 501 (Pa. Cmwlth. 2018) (citing
Bogan v. Unemployment Comp. Bd. of Rev., 447 A.2d 708 (Pa. Cmwlth. 1982)) (concluding no
willful misconduct existed where the claimant’s “attempts to obtain the doctor’s note within a
week’s time, while unsuccessful, did not evince a willful disregard of [the m]anager’s request for
documentation”).
14
III. Conclusion
Based on the foregoing, we conclude that Claimant’s issues are meritless. We
therefore affirm the Board’s October 2, 2020 order, which reversed the referee’s
decision and deemed Claimant ineligible for UC benefits.
______________________________
STACY WALLACE, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin O. Roethlein, :
Petitioner :
:
v. : No. 1102 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 24th day of February 2023, the October 2, 2020 order
of the Unemployment Compensation Board of Review is AFFIRMED.
______________________________
STACY WALLACE, Judge