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Sipps v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

March 26, 2018

Matt Sipps, Petitioner
Unemployment Compensation Board of Review, Respondent

          Submitted: March 8, 2018



          ANNE E. COVEY, JUDGE

         Matt Sipps (Claimant) petitions this Court for review of the Unemployment Compensation (UC) Board of Review's (UCBR) April 4, 2017 order affirming the Referee's decision, as modified, denying Claimant UC benefits under Section 402(e) of the UC Law (Law).[1] Essentially, Claimant presents one issue for this Court's review: whether the UCBR erred by concluding that Claimant committed willful misconduct.[2] After review, we affirm.

         Claimant was employed by G4S Security Solutions (Employer) as a fulltime security officer from January 9, 2012 through December 4, 2016. Employer provides 24-hour security for State Farm. See Certified Record (C.R.) Item 10, Notes of Testimony, February 17, 2017 (N.T.) Ex. 13 at 10. On January 13, 2012, Claimant acknowledged Employer's Security Officer Handbook policy that "[g]rounds for [i]mmediate [d]ismissal" include "[f]ailure to report immediately an arrest . . . to your supervisor." N.T. Ex. 13 at 2; see also N.T. Exs. 10, 14-17.

         On December 5, 2016, Claimant was arrested on criminal charges and held in Delaware County prison until he was released at approximately 10:00 p.m. that day. On December 6, 2016, Employer learned from a news report that Claimant had been arrested. At approximately 7:30 p.m. that same day, Claimant notified Employer of his arrest. Employer discharged Claimant for violating its arrest reporting policy.

         Claimant applied for UC benefits. On January 19, 2017, the Erie UC Service Center determined that Claimant was not eligible for UC benefits pursuant to Section 402(e) of the Law. Claimant appealed and a Referee hearing was held on February 17, 2017, at which Claimant appeared pro se. On February 22, 2017, the Referee affirmed the UC Service Center's determination. Claimant appealed to the UCBR. On April 4, 2017, the UCBR adopted and incorporated the Referee's findings and conclusions, as modified, and affirmed the Referee's decision. Claimant appealed to this Court.[3]


Section 402(e) of the Law provides that an employee is ineligible for [UC] benefits when his unemployment is due to discharge from work for willful misconduct connected to his work. The employer bears the burden of proving willful misconduct in a[] [UC] case. Willful misconduct has been defined as (1) an act of wanton or willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of standards of behavior which the employer has a right to expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or a disregard of the employee's duties and obligations to the employer.[4]

Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added).

Where willful misconduct is based upon the violation of a work rule, the employer must establish the existence of the rule, its reasonableness, and that the employee was aware of the rule. Once employer meets this burden, the burden shifts to the claimant to prove that the rule was unreasonable or that he had good cause for violating the rule.

Weingard v. Unemployment Comp. Bd. of Review, 26 A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted). "A claimant has good cause if his . . . actions are justifiable and reasonable under the circumstances." Grand Sport Auto Body v. Unemployment Comp. Bd. of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (quoting Docherty v. Unemployment Comp. Bd. of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)). Ultimately, "[t]he question of whether conduct rises to the level of willful misconduct is a question of law to be determined by this Court." Scott v. Unemployment Comp. Bd. of Review, 105 A.3d 839, 844 (Pa. Cmwlth. 2014).

         In the instant matter, Claimant does not dispute that Employer had a policy relative to immediately reporting an arrest, that he was aware of it, or that it was reasonable. It is also uncontested that Claimant notified Employer of his arrest on the evening of December 6, 2016. Thus, at issue here is whether, under these specific facts, Claimant "immediately" reported his arrest to Employer as required by Employer's policy and, if not, whether Claimant had good cause for failing to do so.

         At the hearing, Employer's human resources representative Leslie Frescatore (Frescatore) testified that Claimant's employment was terminated because he failed to immediately report his December 5, 2016 arrest. She recounted that Employer became aware of Claimant's arrest on December 6, 2016 based on news reports.[5] See N.T. at 6. Frescatore explained that Claimant or anyone on his behalf could have reported Claimant's arrest directly to his supervisor, to Employer's local office during business hours, or to Employer's corporate office in Florida that would have answered the phone after hours and emailed the local office.[6] See N.T. at 7.

         Claimant testified that he worked on December 4, 2016, and was not scheduled to work again until Wednesday evening, December 8, 2016.[7] He recounted that he was incarcerated for approximately eight hours following his December 5, 2016 arrest, and was released at approximately 10:00 p.m. after he posted bail.[8], [9] See N.T. at 8, 11. Claimant testified he was aware of Employer's policy, see N.T. at 10, but asserted he could not report his arrest to Employer on December 5th because he did not have a cell phone or access to a telephone during the time he was incarcerated. See N.T. at 8, 10. He admitted that he had access to a telephone and used a computer after his December 5th release, and acknowledged that calling Employer would take only five minutes. See N.T. at 11. Claimant reported that he nevertheless notified Employer of his arrest on December 6th between 7:00 p.m. and 8:00 p.m. See N.T. at 9.

         Claimant explained that he did not call his supervisor on the morning of December 6th because he was not scheduled to work until Wednesday and, in the meantime, he prioritized what he had to accomplish to comply with the judge's orders, such as filing paperwork and finding a lawyer. See N.T. at 9-11. When asked why he did not contact his supervisor after his 10:00 p.m. release on December 5th, Claimant maintained:

C Well, sometimes he's hard to get a hold of. He doesn't answer right away, and especially at nighttime. I was being more considerate and concerned with him, because he has a wife that's ...

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