IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine M. Daugherty, :
Petitioner :
:
v. : No. 256 C.D. 2004
: Submitted: October 1, 2004
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE JIM FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FLAHERTY FILED: November 8, 2004
Catherine M. Daugherty (Claimant), pro se, petitions for review from a determination of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the referee denying Claimant’s petition for benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of June 5, 1936, Sec. Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802 (e), due to her willful misconduct. We affirm.
Claimant worked for Penn College of Technology (Employer) as a custodial worker for 15 years. Employer discharged Claimant for falling asleep on duty after having been previously disciplined for such behavior. Claimant's request for benefits was denied by the job center and a hearing before a referee was conducted. At the hearing, Claimant testified and Employer presented its own witnesses. The referee credited the testimony of Employer’s witnesses and determined that Claimant was discharged for willful misconduct for having slept on the job after previously being warned about such action. On appeal, the Board adopted the findings and conclusions of the referee and determined that Claimant engaged in willful misconduct and did not establish good cause for her behavior. This appeal followed.1
Initially, we observe that the referee’s findings, adopted by the Board, are as follows:
On appeal, Claimant raises numerous arguments, including whether there should have been a finding that, when the supervisors found her sleeping, she reportedly told them that she was ill and hurting with pain. Although Claimant maintains that she was indeed ill and provided her supervisors with this information, the supervisors claimed that she never made such a statement. The referee’s decision adopted by the Board noted there was conflict in the testimony relating to the sleep incident and chose to credit the testimony of the Employer’s witnesses over that of Claimant’s. Because credibility issues and evidentiary weight are within the discretion of the Board, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), we find no merit to Claimant’s first contention.
Claimant also alleges that Board erred in determining that her sleeping on the job constituted willful misconduct. Willful misconduct is defined as a disregard of the standard of behavior that the employer has a right to expect of an employee or a deliberate violation of the employer’s rules. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Where the employer proves the existence of a rule, the reasonableness of the rule and the facts of its violation, the burden shifts to the claimant to prove that she had good cause for her action. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999).
Here, the testimony credited by the referee and the Board establishes that Claimant on two previous occasions had been disciplined for sleeping on the job. On August 25, 2003, employer again discovered Claimant sleeping on the job and discharged her for the conduct. This court has previously stated that sleeping on the job constitutes willful misconduct, disqualifying a claimant from receiving benefits. L. Washington & Associates, Inc. v. Unemployment Compensation Board of Review, 662 A.2d 1148 (Pa. Cmwlth. 1995).
Claimant nonetheless maintains that she had a good cause for her behavior because a doctor’s note she had previously submitted to Employer stated that her medical condition may require her to take additional breaks at work. Claimant was advised and understood, however, that if she needed an additional break, she was to notify Employer so that one could be provided. Subsequent to giving Employer her medical documentation, Claimant did not request any additional breaks from Employer. The Board found that Claimant did not establish good cause for her failing to notify Employer of her need for a break. As Claimant failed to establish good cause for sleeping on the job, the Board did not err in denying benefits.
Next, Claimant maintains that the referee improperly prevented her from questioning Employer’s witnesses. A review of the record reveals, however, that the referee informed Claimant that she had the right to call witnesses and to cross-examine witnesses. (R. at p. 2.) The referee thereafter asked Claimant if she had any questions for Employer’s witness Mr. Campbell. Claimant responded that she did and then asked him several questions. (R. at p. 8-10.) Claimant also cross- examined another of Employer’s witnesses, Mr. Nyman, and then at the conclusion of her examination, the referee asked Claimant if she had any additional questions to which she responded she did not. (R. at p. 12.) Thus, Claimant’s contention that the referee prevented her from questioning Employer’s witnesses is not supported by the record.
In addition, Claimant alleges that the referee failed to consider medical evidence she brought to the hearing. Claimant argues in her brief that the medical evidence supports her claim that she suffered from a medical condition. That Claimant did have a medical condition and reported such to Employer is not in dispute. Employer had directed Claimant to inform Employer when she needed an additional break and the referee and Board determined that Claimant did not have good case for failing to comply with Employer’s request when a phone was available to Claimant within six feet of where she slept.
Finally, Claimant maintains that there are places in the record indicating that the testimony of the witnesses was inaudible. Claimant, however, failed to raise this issue in her petition for review and issues not raised therein are deemed waived. Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164 (Pa. Cmwlth. 1991). Moreover, we note Claimant has failed to state in her brief how she was adversely affected by these omissions and arguments that are not properly developed in a brief are deemed waived. Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636 (Pa. Cmwlth. 1998).
In accordance with the above, the decision of the Board is affirmed.
JIM FLAHERTY, Senior Judge