R.E. Robinson v. UCBR ( 2017 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Robert Edward Robinson,                        :
    :
    Petitioner               :
    :
    v.                               : No. 263 C.D. 2016
    : Submitted: December 9, 2016
    Unemployment Compensation                      :
    Board of Review,                               :
    :
    Respondent               :
    BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE JAMES GARDNER COLINS, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    SENIOR JUDGE COLINS                                               FILED: April 18, 2017
    Robert Edward Robinson (Claimant) petitions, pro se, for review of
    an order of the Unemployment Compensation Board of Review (Board) affirming
    the determination of a Referee that Claimant was ineligible for unemployment
    compensation benefits under Section 402(e) of the Unemployment Compensation
    Law1 (Law) because he was discharged from his employment with PNC Bank
    (Employer or PNC) for willful misconduct. For the reasons that follow, we affirm.
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
    Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any
    week in which his or her unemployment is due to willful misconduct connected to his or her
    work. 
    Id. Claimant served
    as a Financial Specialist II at Employer’s bank
    branch at 1600 Market Street, Philadelphia, Pennsylvania, from August 4, 2014
    through September 1, 2015.           (Record Item (R. Item) 8, Referee’s Hearing:
    Transcript of Testimony (H.T.) at 4, 17; R. Item 13, Board’s Decision and Order,
    Findings of Fact (F.F.) ¶ 1.) Claimant filed a claim for unemployment
    compensation benefits after he was discharged from his employment for the
    commission of a dishonest act, which resulted in the loss of his coverage under the
    fidelity bond required by Employer as a condition of employment.2 (R. Item 3,
    Employer Separation Information; R. Item 13, F.F. ¶¶ 2-3.) The Unemployment
    Compensation Service Center (Service Center) issued a determination on
    September 16, 2015 finding Claimant ineligible for benefits under Section 402(e)
    of the Law. (R. Item 4, Notice of Determination.) Claimant appealed and a
    hearing was held before a Referee on November 2, 2015, where Claimant
    appeared, represented by counsel, and Employer presented the testimony of its
    Employee Relations Investigator (Employer’s Witness), who participated by
    telephone.     On November 6, 2015, the Referee issued a decision and order
    affirming the determination of the Service Center.               (R. Item 12, Referee’s
    Decision/Order.) Claimant appealed and on January 27, 2016, the Board issued an
    opinion and order affirming the Referee’s decision, and made the following
    relevant findings of fact:
    2
    Employer’s policy regarding fidelity bonds specifies that if Employer believes that an
    employee may have committed a dishonest act, either at work or outside of work, he is
    automatically not bonded and cannot remain at work. (Record Item 3, Employer Separation
    Information.) The policy further states that employees must be bonded in order to work for
    PNC, and dishonest acts violate the bond, regardless of whether there is actual monetary loss.
    (Id.)
    2
    5. The claimant held a power of attorney for his aunt,
    and the two had a joint checking account in Susquehanna
    Bank.
    6. In accordance with the employer’s Automatic Teller
    Machine (ATM) policy, when an individual deposits a
    check into a PNC ATM, the individual is automatically
    allowed to withdraw $100 even though the check will not
    clear until the following day.
    7. The claimant was aware of the $100 cap.
    8. On August 17, 2015, the claimant deposited a
    Susquehanna Bank check in the amount of $100.56 into a
    PNC ATM, and immediately withdrew $100 in cash from
    the ATM.
    9. The Susquehanna Bank account on which the August
    17 check was drawn had been closed by the bank and did
    not have sufficient funds to cover the amount of the
    August 17 check.
    10. On August 28, the claimant again deposited a
    Susquehanna Bank check from the same account, this
    time in the amount of $100.28, and immediately
    withdrew $100 in cash from the ATM.
    11. Both checks were returned to the employer for
    insufficient funds.
    12. When confronted about his actions, the claimant told
    the employer’s investigators that he knew the account
    was closed at Susquehanna but that he needed the money
    and he deposited the check so that he could withdraw the
    money immediately.
    13. The claimant knew the Susquehanna Bank [account]
    from which the checks had issued had been closed.
    14. By virtue of the claimant’s actions, the claimant was
    in violation of the employer’s policy regarding
    dishonesty.
    15. The claimant was discharged on September 1, 2015
    for violation of the employer’s policy.
    3
    (R. Item 13, F.F. ¶¶ 5-15.)
    In its opinion, the Board resolved conflicts in testimony on the issue
    of whether Claimant knew the Susquehanna Bank account on which he wrote both
    checks was closed and lacked sufficient funds in favor of Employer.                     (Id.,
    Discussion.) The Board determined that by virtue of depositing said checks into
    the PNC ATM and then withdrawing funds to which he was not entitled, Claimant
    acted in a dishonest manner, and therefore violated Employer’s policy.                  (Id.)
    Further, the Board determined that even if Employer had not had a policy against
    dishonest acts, his actions fell “beneath the standard of behavior that a bank can
    expect from an employee….” (Id.) The Board concluded therefore that Claimant
    had committed willful misconduct, and was ineligible for benefits under the
    provisions of Section 402(e) of the Law, 43 P.S. § 802(e). Claimant petitioned this
    Court for review of the Board’s opinion and order.3
    Willful misconduct is defined by the courts as (i) an act of wanton or
    willful disregard of the employer’s interest; (ii) a deliberate violation of the
    employer’s rules; (iii) a disregard of standards of behavior which the employer has
    a right to expect of an employee; or (iv) negligence indicating an intentional
    disregard of the employer’s interest or of the employee’s duties and obligations to
    the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review,
    
    703 A.2d 452
    , 456 (Pa. 1997); Scott v. Unemployment Compensation Board of
    Review, 
    36 A.3d 643
    , 647 (Pa. Cmwlth. 2012). The employer bears the burden of
    proving that the claimant engaged in willful misconduct leading to the discharge.
    3
    Our scope of review of the Board’s decision is limited to determining whether errors of law
    were committed, constitutional rights or agency procedures were violated, and necessary
    findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Henderson v.
    Unemployment Compensation Board of Review, 
    77 A.3d 699
    , 710 n.4 (Pa. Cmwlth. 2013).
    4
    Caterpillar, 
    Inc., 703 A.2d at 456
    ; 
    Scott, 36 A.3d at 647
    . If the employer makes
    that showing, the burden shifts to the claimant to show good cause for his conduct.
    Henderson v. Unemployment Compensation Board of Review, 
    77 A.3d 699
    , 719
    (Pa. Cmwlth. 2013); ATM Corporation of America v. Unemployment
    Compensation Board of Review, 
    892 A.2d 859
    , 865 (Pa. Cmwlth. 2006).
    On appeal Claimant asserts that he did not violate Employer’s
    bonding policy because he had opted in for overdraft coverage and was therefore
    permitted to overdraw his bank account so long as he paid the discretionary fee
    that might be assessed against him by the bank. We reject this argument. The
    evidence is clear that Claimant was discharged from his employment not because
    he overdrew his PNC account, but rather because he did so with knowledge that
    the account on which he had drawn the deposited checks was closed, and
    Employer determined that his actions were dishonest, such that he could no longer
    be bonded.
    Claimant also argues that he had no knowledge that the Susquehanna
    Bank account on which he wrote the two checks had been closed, and received no
    notice from PNC of the closing of the account. We find that there is substantial
    evidence in the record to support the opposite conclusion, reached by the Board,
    that Claimant was in fact aware that the Susquehanna Bank account was no longer
    open.
    In his initial internet claim for benefits, Claimant indicated that the
    reason for his alleged rule violation was that his aunt, who has dementia, got her
    checks confused and gave him checks from an old account. (R. Item 2, Internet
    Initial Claims.) At the hearing, Claimant testified that he opened a new account for
    his aunt at the Police and Fire Federal Credit Union (PFFCU) and did not close the
    5
    account at Susquehanna Bank. (R. Item 8, H.T. at 9.) He stated that he did not
    know that the Susquehanna Bank closed the account at a zero balance, and he was
    still holding both banks’ checks; he testified that he had simply made a mistake
    when he deposited the two Susquehanna Bank checks into his account at PNC.
    (Id.)
    Employer’s Witness testified that with regard to the first check,
    written on August 17, 2015, Claimant told her that he had opened a new account
    for his aunt at PFFCU, but that he had mistakenly grabbed the wrong check, from
    the closed account at Susquehanna Bank. (R. Item 8, H.T. at 6, 8.) Employer’s
    Witness stated that it was plausible that Claimant might have made a mistake as to
    the first check, but that during the investigation he also told her that when he
    deposited the second check, on August 28, 2015, he knew that the Susquehanna
    Bank account was closed, but he deposited the check anyway because he needed
    the money right away and he knew that he could withdraw at least $100
    immediately from PNC. (Id.)
    Claimant denied that he told Employer’s Witness that he knew the
    account was closed. (R. Item 8, H.T. at 9, 11.) He testified that he deposited the
    second check because he had not yet received notification from PNC that the
    Susquehanna Bank account had been closed. (Id., H.T. at 10.) However, he
    subsequently acknowledged that he became aware on August 21, 2015 that the first
    check had been returned for insufficient funds, and on August 24, 2015, he
    deposited $100 into his PNC account after he “saw that the check came back.”
    (Id., H.T. at 11, 14.) Claimant was questioned, both by Employer’s Witness and
    the Referee as to why, when he knew on August 21st that the first check had been
    returned, he nevertheless deposited another check from the Susquehanna Bank
    6
    account on August 28th. (Id., H.T. at 17-18.) He responded that although he
    thought he had shredded the Susquehanna Bank checks, in fact he still had checks
    from both banks in his briefcase, and he again mistakenly pulled the wrong check.
    (Id., H.T. at 17-18.)
    The Board found Claimant’s testimony not credible, and determined
    that Claimant knew that both the August 17 th and August 28th checks were bad
    checks when he deposited them.       The Board is the ultimate fact finder, and its
    credibility determinations and findings of fact are binding on this Court where they
    are supported by substantial evidence, even if there is other contrary evidence.
    Bruce v. Unemployment Compensation Board of Review, 
    2 A.3d 667
    , 671-72 (Pa.
    Cmwlth. 2010); Ductmate Industries, Inc. v. Unemployment Compensation Board
    of Review, 
    949 A.2d 338
    , 342 (Pa. Cmwlth. 2008). Given Claimant’s admission
    that he knew on August 21st that the first check from the Susquehanna Bank
    account had been returned, and Employer’s Witness’ testimony that Claimant
    admitted to her that he knew the August 28 th check was a bad check when he
    deposited it, the Board’s findings here are supported by substantial evidence.
    Finally, Claimant argues that at the hearing, Employer’s Witness
    initially testified that Claimant was discharged from employment because he
    violated Employer’s fidelity bonding policy and specifically that he engaged in the
    practice of “check kiting.” Claimant asserts that he did not engage in “check
    kiting” and challenges the use of this term to characterize his actions, stating that
    the term is used to describe a form of check fraud that is different from the actions
    he took in depositing, and then withdrawing, funds from his account. Claimant
    cites extensively from a United States Supreme Court decision in which the Court
    dealt with a bank president’s elaborate scheme involving the exchange and passing
    7
    of worthless checks between three different banks, and whether or not this conduct
    constituted the making of a false statement to a federally insured bank for the
    purpose of obtaining credit, as proscribed by a federal statute, 18 U.S.C. § 1014.4
    The Supreme Court decision has no relevance here, and we find no merit in
    Claimant’s argument. There is indeed discussion of the meaning of the term
    “check kiting” in the course of the Referee hearing. After Employer’s Witness
    initially referred to Claimant’s actions as “check kiting,” the Referee asked
    Employer’s Witness to define the term, and she responded, “[t]hat’s when you take
    a check from a closed account of a different bank and deposit it into PNC’s ATM
    and then withdraw money immediately knowing that the account of the check that
    you deposited was not a good check and that account was closed.” (R. Item 8,
    H.T. at 5.)        Employer’s Witness thus described precisely the actions which
    Employer determined, following its investigation, to have been taken by Claimant
    and to have constituted dishonest acts in violation of its policy, resulting in the loss
    of his fidelity bond and his discharge from employment. The Referee subsequently
    questioned Claimant as to whether he was “aware that check kiting was a violation
    of policy.” (Id., H.T. at 8.) Claimant responded,
    I didn’t personally. I’ve been in banking for a while. I
    thought check kiting was when you used multiple banks
    to do the third floating policy so that would be an
    example of let’s say I had a Wells Fargo account, a PNC
    account and a Citizens account. And the floating policy
    was different from Wells Fargo. When people kite they
    write checks from different banks and deposit them into a
    bank and then when the availability comes up they write
    another check to cover that check. But I’ve never heard
    4
    See Williams v. United States, 
    458 U.S. 279
    (1982).
    8
    of kiting being deposited it in a [ATM] machine, which is
    PNC’s policy.
    (Id.)
    Employer established that Claimant had completed, on August 5,
    2014, its online training class regarding its Code of Business Conduct and Ethics
    for New Employees, and Claimant was therefore aware of its policy regarding the
    automatic loss of bonding if at any time an employee is believed to have
    committed a dishonest act. (R. Item 3, Employer Separation Information.) The
    Board credited the testimony of Employer’s Witness that Claimant knew that the
    bank account on which he twice wrote checks, deposited them into his PNC
    account and immediately withdrew funds, had been closed and therefore
    knowingly, and in a dishonest manner in violation of Employer’s policy, obtained
    funds from PNC to which he was not entitled. Moreover, Claimant failed to offer
    any good cause for this conduct.
    We hold that the Board properly found Claimant ineligible for
    unemployment compensation benefits under Section 402(e) of the Law.
    Accordingly, the order of the Board is affirmed.
    __________ ___________________________
    JAMES GARDNER COLINS, Senior Judge
    9
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Robert Edward Robinson,             :
    :
    Petitioner         :
    :
    v.                       : No. 263 C.D. 2016
    :
    Unemployment Compensation           :
    Board of Review,                    :
    :
    Respondent         :
    ORDER
    AND NOW, this 18th day of April, 2017, the Order of the
    Unemployment Compensation Board of Review in the above-captioned matter is
    hereby AFFIRMED.
    __________ ___________________________
    JAMES GARDNER COLINS, Senior Judge