The opinion of the court was delivered by: Judge McGINLEY
Submitted: September 10, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
This is an appeal from the order of the Unemployment Compensation Board of Review (UCBR) which denied PrimePay, LLC's (Employer) request for a remand to produce after-discovered evidence of Mary T. Mack's (Claimant) criminal activity against Employer.
Claimant was employed as a customer service representative and claims processor from October 2005, until March 28, 2007. Claimant was on approved medical leave of absence from March 29, 2007, through June 20, 2007, due to complications with pregnancy. Claimant requested, and was granted, an extension of her leave. Claimant was to return to work on Monday, July 9, 2007. Late on the evening of Sunday, July 8, 2007, Claimant e-mailed her supervisor and informed her that the babysitter unexpectedly quit and childcare was unavailable for the next day. On Monday, July 9, 2007, Claimant notified her supervisor that she could not report to work on Tuesday. Claimant was told that if she did not return to work on Wednesday, July 11, 2007, she would be terminated. Claimant did not return to work and was terminated.
Claimant's application for unemployment benefits was denied under Section 402(e) of the Unemployment Compensation Law (Law), 43 P.S. §801(e)*fn1 . The Unemployment Service Center concluded Claimant was discharged for absenteeism, Claimant was warned about absenteeism and she did not establish good cause for the last absence.
Claimant appealed and at the hearing on August 28, 2007, Employer's operations manager, Judy Weber (Weber), testified that Claimant was unable to state for certain when she would return, although she told Weber that her aunt, who could baby-sit, would be back from vacation in a week. Notes of Testimony, August 28, 2007 (N.T.), at 7; Reproduced Record (R.R.) at 11a. Employer's human relations department decided that because there was no time frame for Claimant's return, and because Claimant had already been granted an extension of her leave, she would be terminated if she did not return on Wednesday. N.T. at 10; R.R. at 14a.
Claimant testified that she told Weber that she would have a babysitter by Monday, July 16, 2007. N.T. at 15; R.R. at 19a. Even though she was available as of July 16, 2007, Employer nevertheless terminated her employment.
The referee resolved conflicting testimony in favor of the Employer and found that Claimant failed to inform Employer that she would have childcare in place as of the following week. The referee held that Claimant was ineligible for benefits under Section 402(e) of the Law beginning with waiting week ending July 14, 2007. However, finding that Claimant was available for work as of July 16, 2007, the referee held that she was eligible for benefits under Section 402(d) (1) of the Law, 43 P.S. §801(d)(1), beginning with waiting week ending July 21, 2007.
Both parties appealed from the referee's decision. Employer also requested a remand to the referee for consideration of after-discovered evidence of Claimant's criminal conduct. Employer alleged that after Claimant was terminated, Employer discovered that Claimant had misappropriated over $4,500 using her home computer and accessing Employer's computer system.*fn2 One week after the hearing, Claimant was arrested and charged with over 200 counts of computer theft, computer trespass, unlawful use of a computer, and other related crimes connected to her employment and the unauthorized theft of Employer's funds. According to Employer, Claimant confessed to the arresting officer and was awaiting trial. Employer alleged that if the evidence had been discovered prior to Claimant's discharge Employer would have discharged Claimant for willful misconduct.
The UCBR found that Claimant had good cause for not returning to work and credited her testimony that she informed Employer that she could return to work the following week. The UCBR held that Claimant was not ineligible for compensation pursuant to Section 402(e) of the Law. The UCBR also denied Employer's request for a remand, and concluded, based on Preservation Pennsylvania v. Unemployment Compensation Board of Review, 673 A.2d 1044 (Pa. Cmwlth. 1996), that the alleged criminal conduct was "unrelated" to Claimant's discharge from employment; therefore, Claimant was eligible for benefits under Preservation Pennsylvania.
On appeal to this Court*fn3, Employer contends that a remand is warranted in this case pursuant to this Court's holding in Preservation Pennsylvania. This Court must agree.
It is well settled that to disqualify an employee from receiving unemployment benefits, the employer must prove: (1) the employee was engaged in willful misconduct; and (2) that the willful misconduct was the "actual reason" or the "cause" for the employee's separation from employment. Gallagher v. Unemployment Compensation Board of Review, 388 A.2d 785 (Pa. Cmwlth. 1978).
Preservation Pennsylvania carved out a narrow exception to this rule to allow after-discovered evidence of criminal conduct against the employer when the employer could not have known of ...