           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tracie A. Kerns,                               :
                                               :
                             Petitioner        :
                                               :
              v.                               :   No. 1069 C.D. 2015
                                               :
Unemployment Compensation                      :   Submitted: October 23, 2015
Board of Review,                               :
                                               :
                             Respondent        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                     FILED: February 19, 2016

       Tracie A. Kerns (Claimant) petitions for review of the Order of the
Unemployment Compensation (UC) Board of Review (Board) finding Claimant
ineligible for UC benefits pursuant to Section 402(e) of the UC Law 2 (Law)
because she engaged in willful misconduct related to her work.                    On appeal,
Claimant argues that the Board erred in finding her ineligible for UC benefits


       1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
        2
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (providing, in relevant part, that an employee is ineligible for UC benefits for any week
the employee’s “unemployment is due to his discharge or temporary suspension from work for
willful misconduct connected with his work”).
because: it impermissibly relied upon objected-to hearsay evidence to find that
Claimant engaged in willful misconduct; the evidence establishes that, at most,
Claimant made an unintentional mistake; and it allowed Invision Human Services
(Employer) to assert a reason for Claimant’s discharge not previously asserted.
Discerning no error, we affirm.
      Claimant worked full-time for Employer as a residential counselor from
October 24, 2011 until January 28, 2015, when she was discharged for not
following Employer’s protocols for a client (Client) and lying to her supervisor
regarding an outing with Client. (Board Decision, Findings of Fact (FOF) ¶¶ 1,
14.) Claimant filed an application for UC benefits, which the Local Service Center
denied. Claimant appealed, and the matter was assigned to a Referee for a hearing.
Both Claimant and Employer were represented by counsel. Employer presented
the testimony of Cheryl Travis, Employer’s Regional Human Resources Manager,
and Wanda Colon, a Program Supervisor, and Claimant offered her own testimony.
      Ms. Travis testified that Claimant was discharged for insubordination, which
she described as taking Client, who was not Claimant’s regular client, “on an
outing and lied about it, where food was served . . . and she did not follow the
protocol” regarding Client’s food intake. (Hr’g Tr. at 8, 12, R.R. at 11a, 15a.)
Claimant objected to Ms. Travis’ testimony on hearsay grounds, which the Referee
overruled to “allow . . . the party to develop the record, as to why we’re here
today.” (Hr’g Tr. at 8, R.R. at 11a.) Subsequently, Claimant’s counsel asked why
Claimant was fired, and Ms. Travis answered that “[s]he was fired for taking
[Client] to a place, where food was served without protocols in place, without
completing the proper paperwork, and . . . then when confronted by her supervisor,
directly lying to her about it.” (Hr’g Tr. at 10-11, R.R. at 13a-14a.) Ms. Travis


                                        2
also described Client’s medical condition, Prader Willi Syndrome, and why it was
crucial for Client’s food plan to be strictly followed.3 Ms. Travis acknowledged
that she did not speak directly with Claimant regarding this issue, but stated that
Claimant would have been aware of and trained in Employer’s policies.
       Ms. Colon testified that she was Claimant’s supervisor and that, on January
22, 2015, Client came to her office and told her that, in December 2014, Claimant
had taken her to the house of an ex-employee of Employer, there was food and
alcohol served there, and Client ate food that was not on her program. Claimant
raised a hearsay objection to this testimony, which the Referee partially overruled,
“allow[ing] the testimony for the employer to identify how they became aware of
the alleged incident that caused the investigation, [and] only for that purpose.”
(Hr’g Tr. at 13, R.R. at 16a.) Based on Client’s report, Ms. Colon called Claimant
and asked if she had taken Client to ex-employee’s house on the day in question
and Claimant stated that she had not. Ms. Colon stated that Claimant never
contacted her to indicate that Claimant had been mistaken and that she had taken
Client to the ex-employee’s house.
       Ms. Colon also described Client’s medical condition, the importance of
Client eating only what was on Client’s approved program, and described Client’s
Individualized Support Plan (ISP) that included a calorie restriction. Claimant
objected to the description of the ISP on the basis that the testimony was based on
a written document that Employer did not present and, therefore, hearsay. Ms.

       3
          Prader Willi Syndrome is a brain disorder that causes an individual not to metabolize
food normally causing, inter alia, rapid weight gain and the inability to recognize that the
individual is full which can result in the individual eating until they become ill or die. (Hr’g Tr.
at 9, 14, R.R. at 12a, 17a.) Client’s kitchen is kept locked to prevent Client from having access
to food and, when Client goes on an outing where food may be present, a plan is required to keep
Client safe around the food. (Hr’g Tr. at 9, 14, R.R. at 12a, 17a.)

                                                 3
Colon indicated that it would have violated Client’s rights to present the document
and that, had she been aware that Claimant was going to want a copy of the plan,
she would have brought a redacted version. The Referee overruled the objection
because, as a Program Supervisor, “Ms. Colon . . . has . . . credibly established that
she’s well aware of the client’s . . . required program.” (Hr’g Tr. at 15, R.R. at
18a.) Claimant’s counsel then asked Ms. Colon specific questions about Client’s
ISP, and Ms. Colon testified that Client had “[a] 1,000 calories per day” restriction
and that rice, which Client ate at ex-employee’s house, was on Client’s “restricted
food list.” (Hr’g Tr. at 19, R.R. at 22a.) Ms. Colon explained that Claimant had
worked with Client in the past, she had not trained Claimant on Client’s ISP, and
Claimant did not contact her on that day to question the protocol regarding
changing Client’s food plan or express confusion regarding whether Client could
be taken to a place where food was served. Ms. Colon further indicated that
Employer required a daily note regarding every activity or place an employee took
a client and that, on the date in question, Client’s daily note did not reflect the visit
to ex-employee’s house or the deviation from Client’s food plan.
      Claimant testified that she was trained on Client’s ISP in 2012 or 2013 and
that she had worked with Client six or eight times. According to Claimant, she
took Client to the mall, Client asked to go to ex-employee’s house, and Claimant
took her there. She stated that, while there, ex-employee asked if Client had eaten
dinner yet and offered Client some food, which Claimant thought was better for
Client than what was planned for Client’s dinner. Therefore, Claimant did not
believe that she violated Client’s food plan. Claimant, however, testified that she
could not independently recall what Client ate there. Claimant acknowledged that
she was aware that Client was on a restricted calorie diet plan, she had to obtain a


                                           4
waiver from a clinician or program before giving Client food that was not on
Client’s approved food plan, she did not do so, and she was required to provide a
daily note to Employer explaining all the places Client had been and what they had
done. Claimant admitted that she told Ms. Colon that she had not taken Client to
ex-employee’s house, but explained that she had forgotten about going there and
about Client eating something off-plan. When Claimant later remembered, she did
not contact Employer because she believed she would be brought in to have a
meeting with Employer before she was disciplined.
      The Referee found that Employer met its burden of proving that Claimant
engaged in willful misconduct, and Claimant did not have good cause for her
actions. (Referee Decision at 2.) Therefore, the Referee found Claimant ineligible
for UC benefits. Claimant appealed to the Board. After reviewing the record, the
Board resolved the conflicts of testimony in Employer’s favor and found that
testimony credible. The Board made the following findings of fact:

      1. The claimant was last employed as a full-time residential
         counselor by Invision Human Services at a final rate of $12.63 per
         hour. The claimant began employment on October 24, 2011, and
         her last day of work was January 28, 2015.

      2. In December 2014, the claimant was working with a client that
         had Prader Willi Syndrome, which meant that the client had strict
         dietary restrictions due to the potential that she may eat herself to
         death.

      3. The client had a strict 1,000 calorie per day diet and could eat
         something off her specific food plan if authorized by a clinician or
         supervisor.

      4. The claimant was aware that she needed a waiver from a clinician
         or supervisor prior to the client eating something off the food plan.



                                         5
       5. The claimant had taken the client to the mall and then to an ex-
          employee’s house.

       6. The client had consumed food at the ex-employee’s house.

       7. The claimant did not ask a clinician or a supervisor if the [client]
          could eat anything off the food plan.

       8. The claimant was required to maintain a daily note of what
          occurred with the client.

       9. The claimant listed in the daily note that she had taken the client
          to the mall but did not state that the client was taken to the ex-
          employee’s house.

       10. The claimant did not indicate to the employer that the client had
           eaten anything off her food plan.

       11. On January 22, 2015, an employee[4] had reported to the employer
           that the claimant had taken the client to the ex-employee’s house
           in December 2014.

       12. The employer’s program supervisor called the claimant and asked
           if she had taken the client to the ex-employee’s house at any point
           in time.

       13. The claimant stated that at no point had she ever visited the ex-
           employee’s house with the client.

       14. The employer discharged the claimant for, among other things,
           lying to her supervisor and taking the client to a place where food
           was served without protocols and proper paperwork.
(FOF ¶¶ 1-14.)
       The Board found “that the claimant deliberately and intentionally lied to the
program supervisor and did not follow protocol” and that Employer met its burden
of establishing that Claimant’s actions constituted willful misconduct. (Board

       4
        As described above, it appears that Client, and not an employee, reported the incident to
Ms. Colon.

                                               6
Decision at 3.) The Board did not credit Claimant’s explanations that she forgot
and did not believe she was violating Client’s food plan. Therefore, it concluded
that Claimant did not establish good cause for her actions. Having concluded that
Employer established that one of the reasons given for Claimant’s discharge was
willful misconduct, the Board did not address the other reasons Employer
provided. Accordingly, the Board affirmed the Referee’s Decision. Claimant now
petitions this Court for review.5
       On appeal, Claimant argues that the Board erred because: (1) it relied on
objected-to hearsay evidence to find her ineligible for benefits; (2) her actions were
not intentional or willful but, at most, a mistake; and (3) it did not rely upon the
reason Employer initially asserted for Claimant’s discharge, insubordination, but
upon the after-asserted reason that Claimant lied to find that Claimant committed
willful misconduct.
       We first address Claimant’s assertion that Ms. Travis initially testified that
Claimant was discharged for insubordination and only later indicated that Claimant


       5
          “Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Compensation Board of Review,
87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa.
2014). “The Board’s findings are conclusive on appeal so long as the record, when viewed in its
entirety, contains substantial evidence to support the findings.” Western and Southern Life
Insurance Company v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2
(Pa. Cmwlth. 2006). Substantial evidence is “such relevant evidence which a reasonable mind
would accept as adequate to support a conclusion.” Id. This Court is bound “‘to examine the
testimony in the light most favorable to the party in whose favor the Board has found, giving that
party the benefit of all inferences that can logically and reasonably be drawn from the
testimony’” to determine if substantial evidence exists for the Board’s findings. United States
Banknote Company v. Unemployment Compensation Board of Review, 575 A.2d 673, 674 (Pa.
Cmwlth. 1990) (quoting Taylor v. Unemployment Compensation Board of Review, 378 A.2d
829, 831 (Pa. 1977)).

                                                7
was also discharged for lying. Claimant argues that the Board should not have
relied on this after-asserted basis for Claimant’s discharge to find Claimant
ineligible for UC benefits.
      However, a review of the hearing transcript reveals that Ms. Travis
described Claimant’s insubordination as taking Client to a place where there was
off-program food present, allowing Client to eat that food, and then lying about it.
(Hr’g Tr. at 8-9, R.R. at 11a-12a.) In fact, when asked by Claimant’s counsel why
Claimant was fired, Ms. Travis answered that Claimant “was fired for taking
[Client] to a place, where food was served without protocols in place, without
completing the proper paperwork, and . . . then when confronted by her supervisor,
directly lying to her about it.” (Hr’g Tr. at 10-11, R.R. at 13a-14a.) We conclude
that Employer did not alter its basis for discharging Claimant, as suggested by
Claimant, but considered Claimant’s dishonesty to be a part of the
“insubordination” Ms. Travis gave as the overall reason for Claimant’s discharge.
      Claimant next argues that the Board erred and violated her due process
rights in finding her ineligible because it relied upon objected-to hearsay in the
form of Ms. Colon’s testimony regarding statements made by Client, as well as
what was contained in Client’s ISP. Claimant asserts that the Referee overruled
her objections with legally erroneous justifications, none of which are legal bases
for accepting hearsay as competent evidence.
      “Hearsay is defined as an out-of-court statement, either oral or written,
offered in court for the purpose of proving the truth of the matter contained in the
statement.” Bailey v. Unemployment Compensation Board of Review, 597 A.2d
241, 243 n.3 (Pa. Cmwlth. 1991). “Hearsay evidence, [p]roperly objected to, is not
competent evidence to support a finding,” but “[h]earsay evidence, [a]dmitted


                                         8
without objection, will be given its natural probative effect and may support a
finding of the Board, [i]f it is corroborated by any competent evidence in the
record.” Walker v. Unemployment Compensation Board of Review, 367 A.2d
366, 370 (Pa. Cmwlth. 1976). “[A] finding of fact based [s]olely on hearsay will
not stand.” Id.
      Here, Claimant objects primarily to Ms. Colon’s testimony regarding what
occurred with Client on the date in question and what Client’s ISP required. Ms.
Colon’s description of what occurred was based on what Client told her and, had
this testimony been admitted for its truth, it would be hearsay to which Claimant
objected. However, that testimony was not admitted for its truth, but to describe
why Employer began its investigation. (Hr’g Tr. at 13, R.R. at 16a.) It was during
this investigation that Ms. Colon asked Claimant about that day and Claimant told
Ms. Colon that she had never taken Client to ex-employee’s house. Claimant’s
own testimony reveals that, after taking Client to the mall, Claimant took Client to
ex-employee’s house, food was present, and she permitted Client to eat food that
was not on Client’s plan. (Hr’g Tr. at 23-24, R.R. at 26a-27a.) Claimant further
admitted that she denied taking Client to ex-employee’s house when asked by Ms.
Colon. (Hr’g Tr. at 24-25, R.R. at 27a-28a.) Although Claimant explained that
this was because she had forgotten about the visit and, once she remembered she
was going to tell Employer in the interview she assumed would occur before she
was disciplined, (Hr’g Tr. at 25-26, R.R. at 28a-29a), the Board did not credit
Claimant’s testimony in that regard.      “As the ultimate factfinder, the Board
determines the credibility of witnesses and the weight to be assigned to the
evidence.” Tapco, Inc. v. Unemployment Compensation Board of Review, 650
A.2d 1106, 1108 (Pa. Cmwlth. 1994). The fact “that [a party] might view the


                                         9
testimony differently than the Board, is not grounds for reversal if substantial
evidence supports the Board’s findings.” Id. at 1109. Accordingly, the Board’s
findings regarding what occurred that day are supported by non-hearsay evidence.
       The testimony regarding Employer’s protocols and Client’s ISP is a closer
question as it does appear that Ms. Colon was describing, on direct, Employer’s
food protocols and the contents of the ISP, which was based on the contents of
written documents that Employer did not separately present at the hearing, for their
truth. Thus, if the Board’s findings were based solely on that testimony, they
would be unsupported by competent evidence. However, a careful review of the
record reveals that the Board’s findings concerning Client’s plan are supported by
Claimant’s testimony or by Ms. Colon’s responses to questions posed by
Claimant’s counsel. Claimant testified that: she was familiar with Prader Willi
Syndrome from working with Client; Client had a calorie-restricted food plan
because of her medical condition; Client was allowed only to eat what was on the
plan; Claimant was required to get authorization from a clinician or supervisor in
order to deviate from Client’s food plan; she allowed Client to eat non-plan food
offered by ex-employee without obtaining permission from a clinician or
supervisor; and she was required to write what Client did in a daily note.6 (Hr’g
Tr. at 22-23, 26-28, R.R. at 25a-26a, 29a-31a.)               Ms. Colon, in response to
questions from Claimant’s counsel, testified that Client “has a specific menu that
she needs to follow because of medical reason,” has “[a] 1,000 calories per day”
restricted diet, and cannot eat rice, which she allegedly ate on the date in question.


       6
         “The admission of a party opponent is admissible as an exception to the hearsay rule.”
Dillon v. Unemployment Compensation Board of Review, 68 A.3d 1054, 1060 (Pa. Cmwlth.
2013) (citing Pennsylvania Rule of Evidence 803(25), Pa. R.E. 803(25)).

                                              10
(Hr’g Tr. at 19, R.R. at 22a.)     This testimony supports the Board’s findings
regarding Client’s ISP and Employer’s protocols. Accordingly, we conclude that
the Board did not rely on objected-to hearsay to make its determination that
Claimant committed willful misconduct.
      Finally, Claimant argues that her actions were not willful misconduct but
were, at most, an unintentional mistake or inadvertent violation of Employer’s
rules. Claimant asserts that she credibly testified that she did not believe she was
violating Employer’s protocols or rules and that she thought she was acting in
Client’s best interests when she allowed Client to eat food at ex-employee’s house.
      Section 402(e) of the Law states that an employee is ineligible for UC
benefits for any week “[i]n which h[er] unemployment is due to h[er] discharge or
temporary suspension from work for willful misconduct connected with h[er] work
. . . .” 43 P.S. § 802(e). This Court has defined willful misconduct as:
      (1) the wanton and willful disregard of the employer’s interests, (2)
      the deliberate violation of rules, (3) the disregard of standards of
      behavior which an employer can rightfully expect from his employee,
      or (4) negligence which manifests culpability, wrongful intent, evil
      design, or intentional and substantial disregard for the employer’s
      interests or the employee’s duties and obligations.

Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521
(Pa. Cmwlth. 1999). Whether a claimant’s conduct rose to the level of willful
misconduct is a question of law reviewable by this Court.                  Docherty v.
Unemployment Compensation Board of Review, 898 A.2d 1205, 1209 (Pa.
Cmwlth. 2006). “If the employer alleges willful misconduct because the claimant
violated a work rule, the employer must prove both the existence of the rule and its
violation.” Caterpillar, Inc. v. Unemployment Compensation Board of Review,
703 A.2d 452, 456 (Pa. 1997). A claimant must also be “made aware of the


                                         11
existence of the work rule.” Bruce v. Unemployment Compensation Board of
Review, 2 A.3d 667, 671 (Pa. Cmwlth. 2010). Finally, “[a] disregard of rightfully
expected standards of behavior has been described as including a knowing
falsehood or misrepresentation to an employer by an employee concerning an
employee’s work.” Groover v. Unemployment Compensation Board of Review,
579 A.2d 1017, 1019 (Pa. Cmwlth. 1990).             “[A]n employee’s dishonesty
constitutes a disregard of expected standards of behavior . . . where the employee’s
actions are affirmatively deceptive.” Id. at 1019-20.
      If the employer satisfies its burden, the burden shifts to the claimant to show
that he or she had good cause for the conduct.            McKeesport Hospital v.
Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth.
1993).   “A claimant has good cause if his or her actions are justifiable and
reasonable under the circumstances.”      Docherty, 898 A.2d at 1208-09.        If a
claimant had “good cause for the conduct, it was not willful misconduct.” Rossi v.
Unemployment Compensation Board of Review, 676 A.2d 194, 198 (Pa. 1996).
      Because we concluded above that the Board’s findings about Client’s
restrictions, Employer’s protocols, and the incident are supported by substantial
competent evidence, those findings support the determination that Employer had a
work rule of which Claimant was aware and that Claimant violated that work rule
when she allowed Client to eat food that was not part of the food plan without
obtaining permission to deviate from the plan. Moreover, Ms. Colon testified that
Claimant lied to her when asked whether Claimant took Client to ex-employee’s
house, and Claimant admitted that she denied taking Client there when asked.
Claimant’s dishonesty in affirmatively telling Ms. Colon that she did not take



                                         12
Client to ex-employee’s home “constitutes a disregard of expected standards of
behavior” and is willful misconduct. Groover, 579 A.2d at 1020.
      Claimant asserts that she did not intentionally violate Employer’s rules or
standards of behavior because she believed that the food Client ate at ex-
employee’s was better than what was on Client’s plan and she did not tell Ms.
Colon about the trip to ex-employee’s house because she had forgotten. However,
Claimant testified that she “couldn’t even have told you what [Client] ate” at ex-
employee’s house and she only testified that it was rice, fish, and some vegetables
because she “asked recently what was given.” (Hr’g Tr. at 27-28, R.R. at 30a-
31a.) Claimant further testified that she knew she had to obtain permission to
deviate from Client’s food plan, there was a 24-hour phone number available for
her to contact if necessary, and she did not do so. (Hr’g Tr. at 26-27, R.R. at 29a-
30a.) The Board, acting within its role as factfinder, did not credit Claimant’s
explanations for her actions, and we will not revisit the testimony as Claimant
appears to request. Chapman v. Unemployment Compensation Board of Review,
20 A.3d 603, 610 (Pa. Cmwlth. 2011). Therefore, we conclude Claimant did not
establish that her actions were reasonable or justified under the circumstances.


      For the foregoing reasons, we affirm the Board’s Order.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Tracie A. Kerns,                      :
                                      :
                       Petitioner     :
                                      :
            v.                        :   No. 1069 C.D. 2015
                                      :
Unemployment Compensation             :
Board of Review,                      :
                                      :
                       Respondent     :


                                    ORDER

      NOW, February 19, 2016, the Order of the Unemployment Compensation
Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.



                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
