Opinion
No. 1239 C.D. 2013
03-21-2014
Urban Development Partnership, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Urban Development Partnership (Employer) challenges the order of the Unemployment Compensation Board of Review (Board) that affirmed the referee's determination that Michael A. Williams (Claimant) was not ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law). The Board moves to quash Employer's petition for review of the Board's decision.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. The claimant worked for Urban Development Partnership from March 2012 until February 4, 2013 as a plumber. His final rate of pay was $13.00 per hour.
2. The employer has a policy which states that a worker can be terminated for theft, dishonesty or embezzlement.Referee's Decision, April 23, 2013, Findings of Fact Nos. 1-8 at 1; Reproduced Record (R.R.) at 18.
3. The employer informed the claimant of this policy.
4. The final incident leading to termination occurred on February 4, 2013.
5. During this incident, the claimant went to Home Depot with other co-workers in order to buy supplies for the employer.
6. The employer has a strong business relationship with Home Depot.
7. During this incident, the claimant did not attempt to steal any items from Home Depot.
8. The employer discharged the claimant on February 5, 2013. The claimant was discharged due to a written warning, work performance, attendance issues and due to allegedly attempting to commit theft during the final incident.
The referee determined:
In this case, there was a dispute in testimony between the claimant and employer witness as to whether the claimant attempted to steal from Home Depot during the incident in question. The Referee did not find the employer witness' testimony to be credible, therefore resolved all credibility issues in favor of the claimant and based the Findings accordingly. In coming to this determination, it is important to note that the employer witness did not have firsthand knowledge of the event in question, rather her initial testimony was based solely on hearsay provided to her from a Home Depot worker who did not appear at the hearing to testify. Additionally, the
witness offered testimony regarding an alleged Home Depot video that she viewed, only after being further questioned by the Referee. The Referee found the testimony regarding the video to be vague and not credible. Furthermore, as this was not a video recorded by the employer, the witness was unable to authenticate the video as representing a true and accurate depiction of the event in question.Decision at 2; R.R. at 19.
Employer appealed to the Board which affirmed: "The employer provided competent evidence that the claimant picked up a saw blade and was disturbed by the Home Depot's loss prevention department, but presented no competent evidence that the claimant stole or attempted to steal the saw blade. Conversely, the claimant credibly and consistently denied stealing." Board Opinion, June 21, 2013, at 1; R.R. at 24.
Employer contends that the Board erred when it failed to consider the facts which clearly demonstrated that Claimant was terminated for cause and was not entitled to unemployment compensation benefits.
This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Before addressing the merits of Employer's appeal, this Court must rule on the Board's motion to quash.
In its petition for review Employer made the following objections:
5. The Unemployment Compensation Board of Review erred as a matter of law in affirming the decision of the Referee because the decision of the Referee is at odds with the precedent of Moyer U.C. Case, 177 Pa. Super. 72 (1955). As a matter of law, the totality of facts clearly demonstrate [sic] that Claimant [was] terminated for cause.Petition for Review, July 19, 2013, Paragraph Nos. 5-6 at 1-2.
6. The determination of the Unemployment Compensation Board of Review is based wholly on a factual abuse of discretion and therefore the conclusion that petitioner's [Claimant] action did not amount to willful misconduct as a matter of law cannot stand in the light of the weight of all relevant evidence.
In its motion to quash, the Board asserts that Employer's petition for review should be quashed because Employer does not challenge the only issue upon which the Board ruled, whether Employer presented firsthand evidence that Claimant stole or attempted to steal.
Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1513(d), provides in pertinent part that "An appellate jurisdiction petition for review shall contain: . . . a general statement of the objections to the order or other determination . . . . The statement of objections will be deemed to include every subsidiary question fairly comprised therein."
In Maher v. Unemployment Compensation Board of Review, 983 A.2d 1264 (Pa. Cmwlth. 2009), petition for allowance of appeal denied, 606 Pa. 574, 996 A.2d 493 (2010), this Court sitting en banc granted the Board's motion to strike the petition for review of Joseph P. Maher (Maher) and dismissed his appeal because Maher's petition for review reiterated this Court's standard of review and failed to articulate specific objections to the Board's decision to affirm the referee's denial of benefits on the basis of willful misconduct as required by Pa.R.A.P. 1513(d). In his petition for review, Maher asserted that the Board's determination was unsupported by substantial evidence and was based on errors of law. Maher, 983 A.2d at 1265-1266.
This Court granted the motion:
Nowhere is there any mention of any issue regarding willful misconduct. Only in his brief does he argue that the Board erred because Employer [Karoly Law Offices] failed to meet its burden to prove he committed willful misconduct. . . . Claimant's [Maher] petition clearly fails to articulate any statement in his petition for review that addresses the issue of willful misconduct and does not challenge any specific factual findings, thereby resulting in the waiver of those issues.Maher, 983 A.2d at 1268.
Here, Employer asserted that the Board erred when it affirmed the referee and that the Board's decision was contrary to Moyer v. Unemployment Compensation Board of Review, 110 A.2d 753 (Pa. Super. 1955). In Moyer, our Pennsylvania Superior Court affirmed the Board's determination that John P. Moyer committed willful misconduct because he did not report for work for six days without notifying Freyn Engineering Company of his intentions to remain away from work or seek permission to do so.
Although the Board points out that Moyer addresses the issue of absenteeism as opposed to theft as in the present case, both cases involve the question of eligibility for unemployment compensation benefits due to willful misconduct. Further, Employer asserts that the facts and evidence do not support a determination that Claimant did not commit willful misconduct. While Employer's petition for review may not be the most artfully drafted, it does address the issue of willful misconduct in contrast to Maher. This Court denies the motion to quash and will address the merits.
Employer contends that it established that Claimant committed theft at Home Depot while in the course and scope of his employment.
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Here, Employer established that it had a work rule that prohibited theft and that Claimant was aware of it. Employer argues that it also established that Claimant committed theft at Home Depot. Donna Vitabile (Vitabile), office manager for Employer, testified that Enyo from Home Depot contacted Employer to notify it that Claimant attempted to commit theft. Vitabile testified that she spoke directly to Enyo about the matter and viewed a video taken by the Home Depot Loss Prevention Department. Notes of Testimony, April 16, 2013, (N.T.) at 5; R.R. at 6. In the video, Vitabile saw Claimant "take something off the saw blade rack. He had something in his hand and he turned his back to the camera. What he did with the item from that point, I can't speak for." N.T. at 12; R.R. at 13. She testified that the saw blade did not go into the cart or back on the rack. N.T. at 12; R.R. at 13.
Claimant denied stealing or attempting to steal anything from Home Depot. N.T. at 10; R.R. at 11.
The referee did not find Vitabile's testimony credible and resolved all credibility issues in favor of Claimant. The Board adopted the referee's findings and conclusions and specifically noted that Employer presented no evidence that Claimant stole or attempted to steal the saw blade, while Claimant credibly denied stealing. In unemployment compensation proceedings, the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Employer argues that while it introduced hearsay testimony concerning the contents of the video, the evidence is sufficient to support a finding that Claimant stole because Claimant failed to object to the hearsay testimony. Employer's argument fails on two counts. First, Vitabile testified as to what she observed on the video. Claimant had the opportunity to and did cross-examine Vitabile. Employer did not introduce Vitabile's testimony concerning the video in order for the Board to assume the truth of out of court statements of others. The Board was required to make a credibility determination concerning Vitabile's testimony. The Board failed to find Vitabile credible. See Yost v. Unemployment Compensation Board of Review, 42 A.3d 1158 (Pa. Cmwlth. 2012). Secondly, to the extent Vitabile's testimony concerning her conversation with Enyo was hearsay, it was not corroborated by any other evidence and does not support any finding. An unobjected to hearsay statement will be given its probative effect and may support a finding of fact if corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976).
Employer also asserts that Claimant did not deny attempting to steal the saw blade. However, Vitabile testified that Claimant denied stealing anything when she confronted him regarding the allegation. N.T. at 6; R.R. at 7. Further, in Claimant's testimony concerning what occurred at Home Depot, he stated, "I looked at the saw blades, and I picked one up and looked at it. . . . I put it down." N.T. at 10; R.R. at 11. At no time did Claimant admit to stealing or attempting to steal. It was Employer's burden to establish that Claimant committed willful misconduct. Employer failed to shoulder that burden.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 21st day of March, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge