IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nick Civitarese,
:
Petitioner
: :
v.
:
No. 1134 C.D. 2001
:
Submitted: November 20, 2001
Unemployment Compensation Board
:
of Review,
:
Respondent
:
BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge
HONORABLE JAMES R. KELLEY, Senior Judge
HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SMITH-RIBNER
FILED: February 26, 2002
Nick Civitarese petitions this Court for review of an order of the
Unemployment Compensation Board of Review (Board) which affirmed the
decision of the Unemployment Compensation Referee (Referee) denying his
unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.
Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e) (willful misconduct).
Civitarese contends in his statement of questions involved that the Board's findings
of fact are not supported by substantial evidence in the record.
EMR Engineering & Construction, Inc. (Employer) employed
Civitarese as a pump repairer from April 1996 until his termination effective
Monday, January 8, 2001. Civitarese's last day at work was on Thursday,
January 4. On Friday, January 5, Civitarese called his supervisor Michael Mengel,
Director of Employer Operations, at home before 7 a.m. to inform him that he was
going to be late. Civitarese asked Mengel not to pick him up on the way to work
as he had done for several months. Later that same morning, Brian Dzon,
Employer's President, called Civitarese and told him not to come to work that day
but to "take a day or two off and, you know, get his life together." N.T. at p. 4.
Therefore, Civitarese did not report to work on Friday, January 5, and Mengel did
not pick him up for work on Monday, January 8. Instead, another co-worker
stopped by Civitarese's home on January 8 to request that he turn over Employer's
cell phone. Civitarese also received from Employer that same day a handwritten
note requesting that company equipment be returned and a letter dated January 8,
2001 stating that Civitarese was terminated effective that date. Exhibit 9.
Civitarese returned for his personal belongings on January 12.
Civitarese filed for benefits and received payment for the claim week
ending January 20, 2001. Thereafter, the Unemployment Compensation Service
Center (Service Center) received notice from Employer of Civitarese's termination
for absenteeism. Based upon the explanation provided by Employer, the Service
Center forwarded to Civitarese a notice indicating that he was ineligible for
benefits and that he was responsible for repayment of $430 that he received for the
claim week ending January 20, 2001. The Referee denied benefits under Section
402(e) of the Law finding that Civitarese committed willful misconduct. The
Board affirmed, and while stating that Civitarese was excessively absent from
work, the Board apparently relied on its findings that Civitarese failed to report to
work or to call off from work on January 5 and January 8, 2001 to support the
conclusion that Civitarese committed willful misconduct.
Willful misconduct has been defined 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 from
employees, or negligence manifesting culpability, wrongful intent or evil design or
show an intentional and substantial disregard of the employer's interest or of the
employee's duties and obligations. Williams v. Unemployment Compensation
Board of Review, 380 A.2d 932 (Pa. Cmwlth. 1977). It is well established that the
burden rests with the employer to prove that a claimant committed willful
misconduct. Mendez v. Unemployment Compensation Board of Review, 516 A.2d
806 (Pa. Cmwlth. 1986); Unemployment Compensation Board of Review v. Bacon,
361 A.2d 505 (Pa. Cmwlth. 1976). Whether conduct rises to such level is a
question of law subject to the Court's review. Schneider v. Unemployment
Compensation Board of Review, 523 A.2d 1202 (Pa. Cmwlth. 1987).
Civitarese correctly argues that the findings of facts are not supported
by substantial evidence in the record, citing Lechner v. Unemployment
Compensation Board of Review, 639 A.2d 1317 (Pa. Cmwlth. 1994), and Ganly's
Pub and Deli v. Unemployment Compensation Board of Review, 639 A.2d 1313
(Pa. Cmwlth. 1994). The record shows that Employer never submitted any
evidence to support an excessive absenteeism determination. Mengel testified that
Civitarese called him to report that he would be late for work on January 5 and that
he should not pick him up at home. The Board found that Mr. Dzon called
Civitarese later that morning and informed him to take the day off to get his life
together; Mr. Dzon testified however that he informed Civitarese to take off a day
or two. This testimony does not support a finding that Civitarese was absent from
work on January 5 without notice, and thus his behavior cannot be construed as an
act of willful misconduct.
Additionally, it is undisputed that Civitarese received the termination
letter at home on January 8. Therefore, Civitarese's failure to report to work from
January 9 through January 12 likewise cannot be held against him and cannot
support a finding that he was absent from work without notice in disregard of
Employer's interests or in violation of its rules. Civitarese already had been
terminated, and the Board's finding that he was terminated on January 12 simply is
not supported anywhere in this record. The Court reverses the Board's order
inasmuch as its findings are not supported by substantial evidence. Employer
otherwise has failed to meet its burden of proof.
Mendez. Benefits are reinstated.
DORIS A. SMITH-RIBNER, Judge