S.J. Bertram v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean J. Bertram, :
Petitioner :
:
v. : No. 726 C.D. 2019
: Submitted: January 29, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: March 29, 2021
Sean J. Bertram (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) denying his claim for
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law), 43 P.S. §802(e).1 Claimant argues that the Board’s
findings of fact are not supported by substantial evidence and its legal conclusion is
erroneous. Upon review, we reverse.
This matter initially came before the Court in an appeal from an
adjudication of the Board, dated December 8, 2017, that affirmed a Referee’s
determination that Claimant committed disqualifying willful misconduct under
Section 402(e) of the Law by calling his employer’s general sales manager a liar in
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e),
which states, in relevant part, that “[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….”
a meeting on January 23, 2017. In doing so, the Board adopted the Referee’s
findings of fact and conclusions of law, without discussion. Concluding that the
Board capriciously disregarded relevant evidence, a divided panel of this Court
vacated the Board’s adjudication and remanded the matter to the Board with
instructions to resolve the conflicts in the testimonial and documentary evidence,
make express credibility determinations and issue a new adjudication. See Bertram
v. Unemployment Compensation Board of Review, 206 A.3d 79, 84-85 (Pa. Cmwlth.
2019) (Bertram I). Following remand, the Board issued a May 16, 2019,
adjudication that again affirmed the Referee’s decision and denied Claimant benefits
for the stated reason that he committed disqualifying willful misconduct. Claimant
petitioned for this Court’s review.
Claimant worked as a full-time salesperson for Tom Hesser
Chevrolet/BMW (Employer) from September 16, 1993, until his last day of work on
January 19, 2017. Certified Record (C.R.) Item No. 17; Board Adjudication,
5/16/2019, Finding of Fact 1. After his separation from employment, Claimant
applied for unemployment compensation benefits. The Unemployment
Compensation (UC) Service Center determined that Claimant was ineligible for
unemployment compensation benefits because he was discharged for
insubordination, which constituted disqualifying willful misconduct under Section
402(e) of the Law. C.R. Item No. 6, at 1. Claimant appealed, and a referee held a
hearing on April 27, 2017.
In Bertram I, we summarized the testimony presented at the hearing as
follows:
Employer presented the testimony of John Katsaros, the General
Sales Manager, who stated he began working for Employer on
January 4, 2017. Katsaros testified that he fired Claimant on
2
January 23, 2017, for repeated acts of insubordination during the
month of January.
Katsaros cited the example of January 20, 2017, when one of
Claimant’s customers arrived to pick up his vehicle but Claimant
was not there to help him. Katsaros also complained that
Claimant did not comply with the policies requiring a
salesperson to accompany a customer on a test drive and enter
every customer’s personal information into an online database.
Claimant did not submit a business plan for increasing his sales
performance as requested by Katsaros. Finally, Claimant did not
always introduce his customers to Katsaros as directed by
Katsaros.
When Claimant reported to work on Monday, January 23, 2017,
Katsaros called Claimant into his office. According to Katsaros,
Claimant raised his voice and called Katsaros a “liar.” Notes of
Testimony, 4/27/2017, at 11 (N.T. __). Katsaros stated that
because his door was open, other employees and a customer in
the vicinity of his office could overhear this exchange.
On cross-examination, Katsaros acknowledged that he
announced the dismissal of two employees during a sales
meeting on January 20, 2017. However, he did not acknowledge
that he also announced Claimant’s dismissal at that meeting.
Claimant testified and disputed each of Katsaros’ claims of
insubordination. Claimant stated that he was scheduled to be off
work on January 20, 2017, and the customer who showed up did
not have an appointment. The matter was handled by another
employee after speaking by phone with Claimant. Claimant
testified that he submitted a sales generation plan to Katsaros on
January 9, 2017, which document was admitted into evidence.
He explained that he tried to introduce every customer to
Katsaros, but Katsaros was not always available. Claimant
denied ever allowing a customer to test drive a vehicle without
the presence of Claimant, and he stated that he always entered
customer information into Employer’s database. Claimant
testified that in his 23 years with Employer, he followed all
policies and procedures.
3
Claimant testified that his co-worker, Keri Malone, was present
at a meeting of the sales team on Friday, January 20, 2017, at
which Katsaros announced his plan to fire Claimant. Malone
relayed this information to Claimant over the weekend. When
Claimant arrived at the dealership on Monday morning, his files
were gone from his office, which “meant that [he] was out of the
picture” and that he “was going to be terminated.”[][2] N.T. 28.
Claimant acknowledged being upset during his meeting with
Katsaros but did not recall calling him a liar. Claimant testified
that Katsaros’ office door was closed and “[a]t no time did I raise
my voice, or at any other time refuse to follow any of his
instructions, or any of the rules of [Employer].” N.T. 30.
Keri Malone testified on Claimant’s behalf. She stated that
Claimant was a helpful and hardworking colleague, followed
Employer’s rules and rarely took days off. Malone
acknowledged that Katsaros had asked the sales personnel to
introduce customers to him; however, Katsaros was often in
meetings or could not be found. Malone was present at the
dealership on January 20, 2017, when Claimant’s customer
arrived to pick up his vehicle. The customer did not have an
appointment and was not upset that Claimant was not present.
Malone testified that later that day, at a meeting of the sales team,
Katsaros announced the dismissal of two sales employees and
Claimant. Malone testified that Katsaros fired Claimant and
other salespeople because of declining sales at the company.
Bertram I, 206 A.3d at 81-82 (footnote omitted).
After considering the evidence presented, the Referee concluded that
Claimant committed disqualifying willful misconduct under Section 402(e) of the
Law by calling Katsaros a liar on January 23, 2017. C.R. Item No. 12; Referee
Decision, 5/1/2017, at 2. Claimant appealed to the Board, which adopted the
2
Katsaros acknowledged removing a single file from Claimant’s desk on January 20, 2017, and
speculated that other employees may have removed other files thereafter, though he did not clarify
whether he instructed them to do so. N.T. 18.
4
Referee’s findings of fact and conclusions of law and affirmed the Referee’s decision
without discussion. C.R. Item No. 15; Board Adjudication, 12/8/2017, at 1.
Claimant appealed the Board’s December 8, 2017, adjudication to this
Court. He argued that the Board capriciously disregarded relevant evidence that
showed that he was discharged on January 20, 2017, i.e., before his January 23, 2017,
meeting with Katsaros. Specifically, the Board made no mention of Malone’s
testimony that she heard Katsaros announce Claimant’s discharge on January 20,
2017, before the meeting of January 23, 2017, between Claimant and Katsaros.
Claimant asserted that his behavior at the January 23 meeting had no bearing on his
discharge and that he was terminated for unsatisfactory sales performance, not
willful misconduct. A divided panel of this Court vacated the Board’s adjudication
and remanded the matter to the Board with instructions to resolve the conflicts in all
the testimonial and documentary evidence, make explicit credibility determinations,
and issue a new adjudication. See Bertram I, 206 A.3d at 84-85.
Following remand, the Board issued its May 16, 2019, adjudication, in
which it made the following findings of fact:
1. The claimant was last employed by Tom Hesser
Chevrolet/BMW as a full-time salesperson from September 16,
1993, until his last day worked on January 19, 2017.
2. The claimant was in charge of the employer’s courtesy
delivery program of vehicles.
3. The claimant was off for his regularly scheduled day off on
January 19, 2017, and called out sick on January 20, 2017.[3]
3
The testimony at the hearing indicates that Claimant had a scheduled day off on Friday, January
20, 2017, and that Claimant’s customer arrived on that date. Claimant was then out sick the
following day, Saturday, January 21, 2017. N.T. 25-26. The Board’s misstatements of these dates
in Findings of Fact 3, 4, and 10 are not material to our disposition of the case.
5
4. The sales manager discharged certain employees on January
20, 2017, but he did not inform anyone on January 19 or 20,
2017, that he was going to discharge the claimant.
5. Someone at the dealership took the courtesy delivery files
off of the claimant’s desk before Monday, January 23, 2017, but
it was not the general sales manager.
6. On January 20, 2017, a customer came into the dealership
to pick up a vehicle, but he did not have an appointment to do so.
7. On January 23, 2017, the general sales manager met with
the claimant and asked where he was on January 20, 2017, and
told him about the customer who had come in.
8. The claimant called the general sales manager a liar,
multiple times, in a very loud voice, and said the customer was
not there.
9. This took place in the general sales manager’s office,
located in the middle of the showroom, with the door open, and
there were four sales people within ten feet of the general sales
manager’s office at that time.
10. Prior to January 20, 2017, there had been instances where
the claimant was not complying with directives given to him by
the general sales manager and the general sales manager was
considering discharging the claimant for repeated
insubordination; however, the general sales manager decided to
give the claimant a second chance and was going to tell him so
on January 20, 2017, but the claimant was out sick.
11. The employer discharged the claimant on January 23, 2017,
for disrespecting the general sales manager by calling him a liar,
multiple times on that day.
C.R. Item No. 17; Board Adjudication, 5/16/2019, at 1-2.
After reciting the above findings, the Board explained its rationale for
again affirming the Referee’s decision. The Board acknowledged that Katsaros
vacillated in his testimony about whether he intended to discharge Claimant as a
6
result of his alleged acts of insubordination during the month of January 2017. It
nevertheless credited Katsaros’ testimony that he discharged Claimant because
Claimant called Katsaros a liar multiple times on January 23, 2017, which the Board
concluded was the act that precipitated Claimant’s discharge. The Board found that
certain alleged acts of insubordination by Claimant that were raised by Katsaros,
such as not preparing a business plan, were irrelevant because they were not the
reasons for Claimant’s discharge.
The Board expressly resolved the conflicts between the testimony of
Katsaros, Malone, and Claimant in favor of Employer. Accordingly, the Board
rejected Claimant’s contention that he was discharged prior to January 23, 2017.
Specifically, the Board credited Katsaros’ testimony that he removed
one file from Claimant’s office but not the remaining files. The Board rejected
Claimant’s argument that Katsaros’ testimony should not be credited because it was
contradicted by Employer’s UC Questionnaire, which stated that Claimant was
discharged for “unsatisfactory work performance.” C.R. Item No. 17; Board
Adjudication, 5/16/2019, at 3. The Board pointed out that Employer’s UC
Questionnaire also listed “[l]ack of respect for managers and other employees” as a
reason for Claimant’s discharge. Id. The Board credited Katsaros’ testimony that
Claimant raised his voice when calling Katsaros a liar, and that Katsaros’ office door
was open when the incident took place with four other salespeople nearby. The
Board concluded that Claimant’s act of calling Katsaros a liar without justifiable
provocation constituted willful misconduct under Section 402(e) of the Law, such
that benefits must be denied. Claimant then petitioned this Court for review.4
4
In reviewing an adjudication of the Board, we must determine whether necessary findings of fact
were supported by substantial evidence, whether errors of law were committed, or whether
(Footnote continued on next page…)
7
On appeal, Claimant contends that the Board again erred. He asserts
that the Board capriciously disregarded competent evidence and that the Board’s
findings are not supported by substantial evidence.5 Claimant also appears to take
issue with the Board’s credibility determinations and argues that the Board should
have credited Malone’s testimony where it conflicted with Katsaros’ testimony. He
further asserts that the evidence in the record, including Employer’s UC
Questionnaire, shows that Claimant was discharged before he committed the alleged
misconduct on January 23, 2017. Claimant contends that his defense of his conduct
at the January 23, 2017, meeting did not constitute willful misconduct.
We begin with a review of the applicable legal standards. “A capricious
disregard of evidence occurs where the fact finder willfully and deliberately
disregards competent and relevant evidence that one of ordinary intelligence could
not possibly have avoided in reaching a result.” Wise v. Unemployment
Compensation Board of Review, 111 A.3d 1256, 1262 (Pa. Cmwlth. 2015) (citing
Spencer v. City of Reading Charter Board, 97 A.3d 834, 842 (Pa. Cmwlth. 2014)).
The Pennsylvania Supreme Court has explained that a review for capricious
disregard of competent evidence is “an appropriate component of appellate
consideration in every case in which such question is properly brought before the
constitutional rights were violated. Johns v. Unemployment Compensation Board of Review, 87
A.3d 1006, 1009 n.2 (Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014). “Substantial evidence
is such relevant evidence which a reasonable mind would accept as adequate to support a
conclusion.” Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa.
Cmwlth. 1999). We view the record in the light most favorable to the party that prevailed before
the Board and afford that party the benefit of all reasonable inferences that can be drawn from the
evidence to determine if substantial evidence exists. Big Mountain Imaging v. Unemployment
Compensation Board of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012).
5
We have summarized Claimant’s arguments on appeal for brevity and clarity. Claimant
specifically challenges Findings of Fact 4 and 8-11, which form the basis for the Board’s
conclusion that Claimant committed willful misconduct.
8
court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 (Pa. 2002). “Disturbing an agency’s adjudication for
a capricious disregard of evidence is appropriate only where the factfinder has
refused to resolve conflicts in the evidence, has not made essential credibility
determinations, or has completely ignored overwhelming evidence without
comment.” Wise, 111 A.3d at 1263 (citing Hinkle v. City of Philadelphia, 881 A.2d
22, 27 (Pa. Cmwlth. 2005)). In Wise, this Court explained:
“Capricious disregard” then is just another name for the agency
abusing its discretion and is an error of law when the agency fails
to give an indication that it has examined countervailing
substantive testimony that had to be considered at arriving at its
decision.
The capricious disregard standard then is nothing more than a
shorthand way of referring to an amalgam of existing
overlapping legal and constitutional standards mentioned above
that safeguard against arbitrariness by state and local
administrative agencies by requiring a meaningful explanation of
why the losing party’s overwhelming evidence was not accepted.
Wise, 111 A.3d at 1263 (quoting Hinkle, 881 A.2d at 27 (footnote omitted)). “An
appellate court conducting a review for capricious disregard of material, competent
evidence may not reweigh the evidence or make credibility determinations.” Wise,
111 A.3d at 1263 (citing Spencer, 97 A.3d at 842).
Applying the above principles to the instant matter, we conclude that
the Board’s remand adjudication did not capriciously disregard competent and
relevant evidence. Following Bertram I, the Board addressed the conflicts in the
testimony and documentary evidence and made express credibility determinations;
this time it did not ignore evidence without comment. Specifically, and as we
directed in Bertram I, the Board discussed and resolved the conflicts among (1)
9
Katsaros’, Claimant’s, and Malone’s testimony concerning the timing and reason for
Claimant’s discharge, and (2) documentary evidence that conflicted with Katsaros’
testimony, including the business plan Claimant prepared and Employer’s UC
Questionnaire. See C.R. Item No. 17; Board Adjudication, 5/16/2019, at 1-3; see
also Bertram I, 206 A.3d at 85 (identifying these specific evidentiary conflicts for
resolution). The Board explained that it credited Katsaros’ testimony over that of
Claimant and Malone to find that Employer discharged Claimant on January 23,
2017, because Claimant called Katsaros a liar during their meeting on that date. The
Board points out that Employer listed “[l]ack of respect for managers and other
employees” on its UC Questionnaire and also addressed that point in an oral
interview by the UC Service Center. C.R. Item No. 17; Board Adjudication,
5/16/2019, at 3. The Board found that neither Claimant’s business plan, admitted
into evidence, nor the alleged acts of Claimant’s insubordination during the month
of January 2017, after Katsaros was hired as sales manager, were relevant.
Accordingly, we will not disturb the Board’s remand adjudication on grounds that it
capriciously disregarded evidence. See Hinkle, 881 A.2d at 27.
We next turn to Claimant’s challenges to the Board’s specific factual
findings. Claimant asserts that the Board’s findings of fact are not supported by the
record.
It is well-settled that the Board is the ultimate factfinder in
unemployment compensation proceedings. Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1383, 1385 (Pa. 1985). The Board is empowered to
resolve all conflicts in evidence, assess witness credibility, and weigh the evidence.
Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949
A.2d 338, 342 (Pa. Cmwlth. 2008). “It is irrelevant whether the record contains
10
evidence to support findings other than those made by the [Board]; the critical
inquiry is whether there is evidence to support the findings actually” rendered by the
Board. Id. Where substantial evidence supports the Board’s findings, they are
binding on appeal. Henderson v. Unemployment Compensation Board of Review,
77 A.3d 699, 718 (Pa. Cmwlth. 2013).
The employer bears the burden of proving willful misconduct. Guthrie
v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth
1999). This Court has defined willful misconduct as:
(1) the wanton and willful disregard of the employer’s interests;
(2) the deliberate violation of [the employer’s] rules; (3) the
disregard of standards of behavior that an employer can
rightfully expect from his employee; or (4) negligence which
manifests culpability, wrongful intent, evil design, or intentional
and substantial disregard for the employer’s interests or the
employee’s duties and obligations.
Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 606-07
(Pa. Cmwlth. 2011) (citing Guthrie, 738 A.2d at 521). Whether a claimant’s conduct
constitutes willful misconduct is a question of law fully reviewable by this Court on
appeal. Temple University of the Commonwealth System of Higher Education v.
Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001)
(Temple University).
Once the employer has met its burden, “the burden of proof shifts to the
employee to prove that [he] had good cause for [his] actions.” Chapman, 20 A.3d
at 607. Good cause is established where the employee demonstrates that his actions
were “justified or reasonable under the circumstances.” Id.In this case, the Board found that Claimant called Katsaros a liar
multiple times during their January 23, 2017, meeting and that this behavior was the
11
reason for Claimant’s discharge. Claimant first challenges these findings by
asserting that he was discharged before the January 23 meeting and, therefore, could
not have committed willful misconduct at a time when he was no longer an
employee. In so arguing, Claimant argues that Findings of Fact 4 (that Katsaros did
not announce at the January 20 meeting that he was firing Claimant) and 11 (that he
was fired on January 23, not earlier) are not supported by substantial evidence.
Although Claimant’s and Malone’s testimony supports the conclusion
that Claimant was discharged on January 20, 2017, Katsaros’ testimony supports
Findings of Fact 4 and 11. Katsaros testified that he contemplated discharging
Claimant before January 23, 2017, but ultimately decided not to do so. He testified
that he would not have fired Claimant but for his behavior at the January 23 meeting.
N.T. 17-18, 20. The Board expressly credited Katsaros’ testimony on this point and
declined to credit Claimant’s and Malone’s contrary testimony or the contrary
statement on Employer’s UC Questionnaire. Despite the conflicting evidence,
Katsaros’ testimony constitutes substantial evidence that supports Findings of Fact
4 and 11.
Alternatively, Claimant asserts that he did not engage in the alleged
behavior, and that Findings of Fact 8 (Claimant called Katsaros a liar) and 9 (within
hearing distance of four salespeople) are unsupported by substantial evidence.
Claimant’s testimony conflicts with Katsaros’ on this point, and the Board resolved
that conflict in favor of Employer. Claimant admitted that he “might have” called
Katsaros a liar in the meeting because he was angry and upset, although he denied
raising his voice, as Katsaros alleged. N.T. 28, 30. Regardless, Katsaros testified
that Claimant did call him a liar and that Claimant did so loudly, with the office door
open and within hearing distance of four salespeople, which testimony the Board
12
credited. N.T. 51-52. Thus, Katsaros’ credited testimony supports Findings of Fact
8 and 9.
Claimant appears to challenge the Board’s findings concerning the
reason for his discharge, focusing on Findings of Fact 10 (Employer decided not to
fire Claimant based on previous acts of insubordination and poor performance) and
11 (Employer discharged Claimant because he disrespected Katsaros on January 23).
Once again, the record supports these findings based on the Board’s credibility
determinations. Katsaros testified that but for Claimant’s actions during the meeting
of January 23, 2017, he would not have fired Claimant at that time.
Claimant argues that other evidence, such as the testimony offered by
Claimant or Malone, or Employer’s UC Questionnaire, supports his contention that
he was discharged for poor sales, not insubordination. However, it is irrelevant
whether the record contains evidence to support an alternative factual finding. See
Ductmate Industries, 949 A.2d at 342. Although there was considerable conflict in
the testimony concerning each of the factual questions, the Board resolved each
conflict in favor of Employer. Such is the Board’s role. Peak, 501 A.2d at 1385.
Claimant essentially asks this Court to accept his preferred version of the facts,
which we cannot do. Henderson, 77 A.3d at 718. In short, Katsaros’ credited
testimony constitutes substantial evidence that supports the Board’s findings.
Finally, accepting the Board’s factual findings as supported by
substantial evidence, we must consider whether Claimant’s conduct meets the legal
standard for willful misconduct, such that benefits must be denied under Section
402(e) of the Law. As the Board stated, Claimant’s contentions essentially “boil[]
down” to this question of law, which we may review on appeal. C.R. Item No. 17;
Board Adjudication, 5/16/2019, at 3; see Temple University, 772 A.2d at 418 n.1.
13
Claimant argues that even if Employer’s description of his behavior during the
January 23 meeting is accurate, it was not disqualifying willful misconduct.
Claimant asserts that there is a difference between calling someone a liar and stating
that something is a falsehood. Claimant’s Brief at 24-25.
It is well established that “[a]n employee’s use of abusive … or
offensive language with a superior is a form of insubordination that can constitute
willful misconduct,” but this conduct does not constitute disqualifying willful
misconduct where the abusive or offensive language “was provoked or is de minimis
in nature.” Brown v. Unemployment Compensation Board of Review, 49 A.3d 933,
937 (Pa. Cmwlth. 2012); accord Costa v. Unemployment Compensation Board of
Review, 374 A.2d 1012, 1013 (Pa. Cmwlth. 1977). Where an employee’s offensive
and insubordinate words are provoked or de minimis, the employee will not be
denied benefits under Section 402(e) of the Law. Balaschak v. Unemployment
Compensation Board of Review, 395 A.2d 638, 640 (Pa. Cmwlth. 1978).
This Court’s precedent has addressed whether a claimant who accuses
a supervisor of dishonesty has committed willful misconduct. In Luketic v.
Unemployment Compensation Board of Review, 386 A.2d 1045 (Pa. Cmwlth. 1978),
the claimant was discharged because during a meeting with other employees, she
accused the employer’s officers of misleading employees about rumored layoffs.
We opined that, despite her “bad attitude,” the claimant’s statements were
reasonable under the circumstances, particularly because the employer had
attempted to lay the claimant off two weeks earlier. Id. at 1048. We also observed
that the claimant did not use vulgar or offensive language. Id. In reversing the
Board’s adjudication and concluding that the claimant was entitled to benefits, we
stated: “Although the claimant’s statements at the staff meeting may have appeared
14
of sufficient moment to the employer to require her discharge, we do not believe that
the law requires us to reinforce that decision by denying her benefits under the
[Law].” Id.
In Dincher v. Unemployment Compensation Board of Review, 502 A.2d
797 (Pa. Cmwlth. 1986), the claimant, without raising his voice or using offensive
language, accused his supervisor of dishonesty by revoking permission for the
claimant to take a day off work. Citing Luketic, we stated that such an accusation
would be reasonable and not constitute willful misconduct, if it was true. Dincher,
502 A.2d at 800. We concluded that, although there may have been “wiser courses
of action,” the claimant’s conduct was “not egregious such to bar [the] claimant
[from benefits] under Section 402(e) of the [Law].” Id. at 799-800.
By contrast, in Costa, the claimant was discharged after he called his
supervisor a liar in front of an entire office of other employees and “for no apparent
reason[.]” 374 A.2d at 1013. We observed that the record contained no evidence
that the claimant was provoked in any way. Id. We therefore concluded that his
behavior constituted willful misconduct. Id.
Here, as found by the Board, Claimant called Katsaros a liar multiple
times in a loud voice. The word “liar” could, in the abstract, be considered abusive
or offensive. However, the record also shows that Claimant’s statements were
provoked. Specifically, Katsaros admitted that during the January 23 meeting, he
told Claimant that Claimant’s customer had arrived on January 20 and required
service from another employee in Claimant’s absence. N.T. 6-7, 9-11. Claimant
testified that Katsaros claimed that the customer had an appointment and that
Claimant had failed to adequately serve the customer. N.T. 28-29. Considering this
testimony together with the Board’s finding that the customer did not have an
15
appointment, Finding of Fact 6, it appears that Katsaros’ accusation was, in
significant part, untrue.
We hold that, in the face of such provocation, Claimant’s act of calling
Katsaros a liar, even if offensive and regrettable, did not rise to the level of willful
misconduct such that he should be denied benefits under the Law. Balaschak, 395
A.2d at 640; cf. Costa, 374 A.2d at 1013 (holding that the same behavior, with no
evidence of provocation, constitutes willful misconduct).
Because Claimant’s behavior did not constitute willful misconduct as a
matter of law, the Board erred in finding Claimant ineligible for benefits under
Section 402(e) of the Law. Accordingly, we reverse the Board’s order.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge McCullough dissents.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean J. Bertram, :
:
Petitioner :
:
v. : No. 726 C.D. 2019
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 29th day of March, 2021, the Unemployment
Compensation Board of Review’s adjudication in the above-captioned matter, dated
May 16, 2019, is REVERSED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita