               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William B. Boyle, Jr.,                     :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 303 C.D. 2016
                    Respondent             :   Submitted: August 5, 2016


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: October 24, 2016

             William B. Boyle, Jr. (Claimant), pro se, petitions this Court for review
of the Unemployment Compensation (UC) Board of Review’s (UCBR) January 28,
2016 order affirming the Referee’s decision denying Claimant UC benefits under
Section 402(e) of the UC Law (Law).1 Essentially, the issue for this Court’s review is
whether the UCBR erred in determining that Claimant committed willful
misconduct.2 After review, we affirm.

      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’s Statement of the Questions Involved contains five questions:
                1.     Were the findings and claims factual? . . .
                2.     Did the [R]eferee fully grasp the scope of business and nature
                       of sales calls? . . .
                3.     Was it proven that [Claimant] did not work full days as stated
                       in [the] original letter of appeal? . . .
                4.     Was [Claimant] at a disadvantage being on the phone for [the]
                       appeal hearing while [the] other party [was] present with [the]
                       [R]eferee? . . .
              Claimant was employed by Exeter Supply Co., Inc. (Employer) as a full-
time salesman from February 2005 through October 28, 2015.                             Claimant’s
compensation included a $35,000.00 annual salary plus commission. Claimant was
required to start his workday at 8:00 a.m. making sales calls, and to work until at least
4:00 p.m. Claimant’s position also often required him to take salespersons with
specific expertise regarding particular Employer products (Specialty Salesperson,
Specialty Salespeople) along with him on sales calls in his territory.                   In those
circumstances, Employer repeatedly informed Claimant that when he was traveling
with a Specialty Salesperson, he was required to fill his day with sales calls.
Claimant was aware that he was responsible for contacting Employer’s general
manager Randy Moore (Moore) or sales manager Marc Miller (Miller) if he would be
traveling with a Specialty Salesperson without having a full day of calls scheduled.
                On October 7, 2015, Claimant traveled with a Specialty Salesperson,
making his last call shortly after 1:00 p.m. On October 15, 2015,3 Claimant traveled
with a Specialty Salesperson, making his last call shortly after 12:00 p.m.                     On
October 27, 2015, Claimant traveled with a Specialty Salesperson and parted ways
with him at approximately 2:00 p.m., informing the Specialty Salesperson that he
needed to get home. On these dates, Claimant did not inform Moore or Miller that he
did not have a full day of sales calls scheduled for the Specialty Salesperson. On
October 28, 2015, after learning of these incidents, Employer’s president Robert
Diefenderfer (Diefenderfer) discharged Claimant due to ending his workdays early,




              5.        Did [Claimant’s former employer, Exeter Supply Co., Inc.,]
                        prove willful misconduct . . . ?
Claimant’s Br. at 5. These issues are subsumed within the issue of whether the UCBR erred in
determining that Claimant committed willful misconduct.
        3
          Finding of Fact 7 incorrectly references a date of October 5, 2015. The testimony reflects
that the incident actually occurred on October 15, 2015.
                                                 2
and for failing to fill his days as required when working with the Specialty
Salespeople.
               Claimant applied for UC benefits.              On November 16, 2015, the
Duquesne UC Service Center found Claimant eligible for UC benefits. Employer
appealed and, on December 11, 2015, a Referee hearing was held.                         Claimant
participated by telephone, and Employer’s witnesses appeared in person.                        On
December 15, 2015, the Referee reversed the UC Service Center’s determination and
found Claimant ineligible for benefits under Section 402(e) of the Law. Claimant
appealed to the UCBR. On January 28, 2016, the UCBR affirmed the Referee’s
decision. Claimant appealed to this Court.4
               Claimant contends that the UCBR erred when it held that Employer
established willful misconduct. Specifically, Claimant argues that the UCBR did not
accurately comprehend the nature of his sales position, and that Employer failed to
prove that he terminated his work days early since, according to Claimant, he
returned home to do paperwork and prepare quotes for Employer. Instead, Claimant
asserts “all that was proven was that [Claimant] did not complete [a] full day WITH
others.” Claimant’s Br. at 8.
               Section 402(e) of the Law disqualifies an employee from UC benefits
for any week “[i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work[.]” 43 P.S. §
802(e).




       4
         “This Court’s review is limited to determining whether the findings of fact were supported
by substantial evidence, whether constitutional rights were violated, or whether errors of law were
committed.” Stugart v. Unemployment Comp. Bd. of Review, 85 A.3d 606, 608 n.3 (Pa. Cmwlth.
2014).


                                                3
             The law is well-established that:

             The employer bears the burden of proving willful
             misconduct in order to disqualify a claimant from receiving
             benefits. Where the claimant’s misconduct is based on the
             violation of an employer’s rule or policy, the employer
             bears the burden of establishing both the existence of the
             rule or policy and its violation by the claimant. Once the
             employer has established the rule and its violation, the
             burden shifts to the claimant to demonstrate either that the
             rule is unreasonable or that good cause existed to violate the
             rule. Whether a claimant has good cause to violate an
             employer’s rule or policy is a question of law subject to this
             court’s review and should be viewed in light of all of the
             attendant circumstances.

Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth.
2006) (citations omitted).
             A determination of what conduct will rise to the level of
             willful misconduct requires a consideration of ‘all of the
             circumstances, including the reasons for the [claimant’s]
             noncompliance with the employer’s directives.’ Navickas[
             v. Unemployment Comp. Bd. of Review], . . . 787 A.2d 284[,
             288 (Pa. 2001)] (quoting Rebel v. Unemployment Comp[.]
             B[d.] of Review, . . . 723 A.2d 156, 158 ([Pa.] 1998))
             (emphasis added). Where the action of the claimant is
             justifiable or reasonable under the circumstances, i.e.,
             where the claimant has good cause for violating the rule, it
             is not willful misconduct because it cannot properly be
             charged as a willful disregard of the employer’s interest or
             rules or of the standard of conduct which the employer has
             a right to expect.

Docherty, 898 A.2d at 1209 (citations omitted).
             This Court has explained:

             In [UC] matters, ‘the [UCBR] is the ultimate fact finder and
             is empowered to resolve conflicts in the evidence and to
             determine the credibility of witnesses.’ Owoc v.
             Unemployment Comp[.] B[d.] of Review, 809 A.2d 441, 443
             (Pa. Cmwlth. 2002). ‘Findings made by the [UCBR] are
                                           4
            conclusive and binding on appeal if the record, examined as
            a whole, contains substantial evidence to support the
            findings.’ Id.

Goppman v. Unemployment Comp. Bd. of Review, 845 A.2d 946, 947 n.2 (Pa.
Cmwlth. 2004).
            Substantial evidence is relevant evidence upon which a
            reasonable mind could base a conclusion. In deciding
            whether there is substantial evidence to support the
            [UCBR’s] findings, this Court must examine the testimony
            in the light most favorable to the prevailing party, in this
            case, the [e]mployer, giving that party the benefit of any
            inferences which can logically and reasonably be drawn
            from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
            In Findings of Fact 5 and 6, the UCBR found that Claimant was aware
that he was required to schedule full days of sales calls when traveling with Specialty
Salespeople and, if and when he did not have a full day of sales calls scheduled, he
was required to contact Moore or Miller.          These findings are supported by
Diefenderfer’s, Moore’s and Claimant’s testimony. See Certified Record (C.R.) Item
8, Notes of Testimony, December 11, 2015 (N.T.) at 6, 7, 14, 27. In Findings of Fact
7 through 11, the UCBR found that, on specific dates, Claimant traveled with a
Specialty Salesperson, failed to have a full day of sales calls, and returned home
before 4:00 p.m.     These findings are supported by the testimony of Specialty
Salespersons Brendan Line (Line) and Kevin Rowe. See N.T. at 25-26, 21-22.
Further, in Finding of Fact 12, the UCBR found that on the subject dates, Claimant
failed to inform Moore and Miller that he did not have a full day of sales calls
scheduled for the Specialty Salespeople. This finding is supported by Claimant’s
admission that he did not notify Employer on the dates in question. See N.T. at 30.
Further, the Referee and the UCBR did not find Claimant’s testimony credible that on

                                          5
the days he returned home early, he continued to work on paperwork and quotes. See
C.R. Item 9, Referee’s Decision/Order, December 15, 2015 at 2, C.R. Item 12, UCBR
Order, January 28, 2016 at 1. The UCBR was free to judge witness credibility and
make factual findings based on the testimony. Goppman.
            The record contains substantial evidence that Claimant was aware of
Employer’s directives that he work a full day and that he schedule a full day of sales
calls when traveling with a Specialty Salesperson, or notify Employer otherwise. The
record evidence also establishes that Claimant failed to comply with those directives.
Thus, we must consider whether Claimant demonstrated good cause for violating
Employer’s directives.
            In his brief, Claimant asserts that he had good cause for not adhering to
Employer’s rules. First, he maintains that his car broke down on October 5, 2015
and, therefore, he was unable to continue his sales calls. (It is unclear whether
Claimant was actually referring to October 15, 2015.) Claimant states that he can
offer documentary evidence proving that his car was towed to a repair shop on that
date. However, the UCBR did not find Claimant to be a credible witness, and the
certified record does not contain any such documentary evidence.
            The Hearing Notice mailed on November 25, 2015, notified Claimant
that he would participate by telephone and that he was required to submit any
documents to be used at the hearing at least five days before the December 11, 2015
hearing. See C.R. Item 7, Notice of Hearing, November 25, 2015 at 1. Section
101.130(e) of the UCBR’s regulations states:

            When any testimony will be given from or with the aid of a
            document not previously distributed to the parties by the
            tribunal, the party expecting to introduce the document shall
            deliver it to the tribunal, and the tribunal shall distribute it
            to each other party and, if known, counsel or authorized
            agent before or at the beginning of the testimony. The
            tribunal may require that the documents be delivered up to 5

                                           6
             days in advance of the hearing. See § 101.131(h) (relating
             to conduct of a telephone hearing).

34 Pa. Code § 101.130(e).
             This Court has explained:

             The UCBR’s regulation at 34 Pa.Code § 101.130 sets forth
             the procedure for receiving testimony from a witness by
             telephone. Section 101.130(e) requires that, before such a
             witness testifies from, or with the aid of, a document, the
             party offering the testimony must have provided the
             document to the opposing party. Where a party fails to
             provide the document as required by section 101.130(e), the
             document ‘may not be admitted nor testimony given or
             taken from it unless consent has been requested from and
             given by all parties. Testimony taken or given in violation
             of this subsection will be excluded from consideration, as
             will the document.’ 34 Pa.Code § 101.131(h) . . . .

Ellis v. Unemployment Comp. Bd. of Review, 749 A.2d 1028, 1032 (Pa. Cmwlth.
2000) (emphasis and footnote omitted). Although Claimant stated in his brief to this
Court that “he can obtain proof from both AAA and [the repair shop] to
substantiate[,]” his claim, such documents are not part of the record evidence, and
therefore, we are precluded from relying on it. Claimant’s Br. at 12.
             Claimant also contends that an October 27, 2015 sales call was cancelled
at the last minute by the client, and that he has a document demonstrating the same.
Claimant sought to offer this document at the hearing, however, was precluded from
doing so or discussing it because he failed to produce it before the hearing as set forth
in the hearing notice and in accordance with the UCBR’s regulations and this Court’s
case law. See N.T. at 15-16. Claimant acknowledged at the hearing that he did not
submit the document regarding the October 27, 2015 sales call before the hearing.
See N.T. at 15. “This Court may not consider any evidence that is not part of the
certified record on appeal.” Pa. Turnpike Comm’n v. Unemployment Comp. Bd. of
Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009).

                                           7
              Claimant further alleges that, after learning last minute that the October
27, 2015 appointment was cancelled, he notified Line that he had no sales calls
scheduled for him, but Line insisted on accompanying him anyway. Even assuming
Claimant’s statement was true, Claimant offered no explanation for his admitted
failure to notify Employer’s general manager or sales manager that he had no
appointments scheduled for Line or the other Specialty Salespeople on the dates at
issue:

              R[eferee:] Sir, is there any reason you weren’t contacting
              [Miller] or [Moore] when these situations would come up
              when you would be out with these [S]pecialty [S]alespeople
              and you weren’t able to fill the day?
              C[laimant:] No. It was probably – it obviously was not
              what I should have done. I did fill my day as best I could
              with them and like I said, things come up during the day
              with sales. I know that if they part ways with me and I part
              ways with them[,] it does not mean either of us are done
              working. As a territory manager, I just wanted to make sure
              my territory was covered.         I probably should have
              communicated a little bit better and I understand that.

N.T. at 30. Based on the record evidence, Claimant failed to demonstrate good cause
for violating Employer’s directives.          Accordingly, we conclude that substantial
evidence supports the UCBR’s determination that Claimant was properly denied UC
benefits for engaging in willful misconduct.5
              For all of the above reasons, the UCBR’s order is affirmed.

                                           ___________________________
                                           ANNE E. COVEY, Judge




         5
        Claimant maintains that he was at a disadvantage at the hearing because he participated by
telephone. However, Claimant stated at said hearing that he had no objection to doing so. See N.T.
at 1.
                                                8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William B. Boyle, Jr.,                  :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 303 C.D. 2016
                    Respondent          :


                                      ORDER


            AND NOW, this 24th day of October, 2016, the Unemployment
Compensation Board of Review’s January 28, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
