            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony L. Forsythe, Sr.,                     :
                            Petitioner        :
                                              :
                     v.                       :   No. 747 C.D. 2017
                                              :   Submitted: December 1, 2017
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                              FILED: February 2, 2018


       Anthony L. Forsythe, Sr., (Claimant), pro se, petitions for review of the May
5, 2017 Order of the Unemployment Compensation (UC) Board of Review (Board)
affirming a UC Referee’s (Referee) Decision finding Claimant ineligible for UC
benefits pursuant to Section 402(e) of the UC Law (Law)1 because he engaged in
willful misconduct related to his work when he falsified a preventative maintenance
report. On appeal, Claimant argues that: (1) the Board’s findings are not supported
by substantial competent evidence; (2) the Board erred in concluding that Claimant’s

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e). Section 402(e) provides that an employee is ineligible for UC benefits if “his
unemployment is due to his discharge or temporary suspension from work for willful misconduct
connected with his work.” Id.
actions constituted willful misconduct; and (3) he had good cause for his actions.
Discerning no error, we affirm the Board’s Order.
      Claimant worked for Hain Pure Protein Corporation (Employer) from October
2015 until January 16, 2017, when he was suspended pending an investigation and
subsequently discharged. At the time of his discharge, Claimant was a full-time
maintenance technician, the duties of which include performing preventative
maintenance on Employer’s machines. Claimant filed an internet claim for UC
benefits, stating that he was discharged for “signing a work order that wasn’t
completed do [sic] to the fact that the box machines were running.” (Internet Initial
Claims, R. Item 2.) Employer responded that Claimant was discharged for signing
off on documents indicating that he completed an inspection when, in fact, he had
not and that Claimant admitted to falsifying documents. (Employer Questionnaire,
R. Item 3.) The Erie UC Service Center found that Claimant was ineligible for
benefits under Section 402(e) of the Law, concluding that Employer met its burden
of proving that Claimant’s actions constituted willful misconduct and that Claimant
did not show good cause for his actions.
      Claimant appealed to the Referee. In his appeal to the Referee, Claimant
stated that a maintenance manager had told the maintenance crew to visually inspect
the machines if they were running at the time such that regular preventative
maintenance could not be performed. (Claimant’s Petition for Appeal, R. Item 5.)
Claimant also stated that he did a visual preventative maintenance check of a certain
machine but acknowledged that “maybe [he] didn[’]t verbaly [sic] write it correctly
on the sheet to there [sic] specs.” (Id.) A telephone hearing on Claimant’s appeal
was held before the Referee on March 16, 2017. (Notice of Hearing – Revised, R.
Item 7.) Employer appeared with two witnesses: Human Resource (HR) Specialist



                                           2
and Maintenance Manager. Claimant appeared on his own behalf. Documentary
evidence was also entered into evidence.2
       Following the hearing, the Referee made the following findings of fact:

       1. The claimant was last employed as a full-time maintenance
          technician by [Employer] from October 2015 until January 16,
          2017, at a final rate of pay of $17.50 per hour.

       2. Part of a maintenance technician’s responsibility is to perform
          preventative maintenance on certain machines including greasing,
          oiling and cleaning.

       3. Preventative maintenance assignments are given to the technician at
          the beginning of the week in which they are to be performed.

       4. On or about January 9, 2017, the claimant was assigned preventative
          maintenance of a certain machine.

       5. On January 15, 2017, the claimant signed and turned in a form
          indicating that he performed the preventative maintenance.

       6. The claimant         never    actually    performed      the    preventative
          maintenance.

       7. The employer discharged the claimant for falsifying the report.

(Referee Decision, Findings of Fact (FOF) ¶¶ 1-7.) The Referee determined that
“the record establishes that the claimant filled out a report indicating that he had
completed preventative maintenance on a particular machine.” (Referee Decision at
2.) The Referee credited the testimony of HR Specialist and Maintenance Manager
“that an inspection of the machine showed that the preventative maintenance was

       2
         Pursuant to the regulations governing telephone hearings, Claimant submitted additional
information to the Referee for the telephone hearing, including, among other things, two
progressive discipline reports, only one of which pertains to this appeal. (Claimant Hr’g
Documents, R. Item 8.) Employer did not submit any documents to the Referee prior to the
telephone hearing.


                                               3
not done.” (Id.) The Referee determined that even if Claimant could not complete
“the preventative maintenance because the machine was running,” Claimant did not
indicate as much on the report. (Id.) The Referee concluded that Claimant’s actions
constituted a disregard of Employer’s interests, thus constituting willful misconduct.
(Id.) Accordingly, the Referee affirmed the UC Service Center’s determination and
concluded that Claimant was ineligible for benefits under Section 402(e) of the Law.
       Claimant appealed to the Board, asserting only that he wished to appeal the
Referee’s Decision and requesting an in-person hearing. (Claimant’s Petition for
Appeal to the Bd., R. Item 11.) Claimant did not provide any explanation of his
arguments in his appeal.
       The Board denied Claimant’s request for a remand, noting that Claimant did
not assert proper cause that would warrant a remand. (Bd. Order.) Reviewing the
evidence presented during the hearing, the Board concluded that the Referee’s
Decision was proper under the Law. The Board noted that “while the claimant
testified that he did a visual inspection of the machine, he also admitted that he did
not note that on the work order and did not adequately explain why he did not do
[so].” (Id.) Accordingly, the Board “adopt[ed] and incorporate[d] the Referee’s
findings and conclusions” into its Order and affirmed. (Id.) Claimant now petitions
this Court for review of the Board’s Order.3

       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006,
1009 n.2 (Pa. Cmwlth. 2014). “Substantial evidence is such relevant evidence [that] a reasonable
mind might accept as adequate to support a conclusion.” Am. Gen. Life and Accident Ins. Co. v.
Unemployment Comp. Bd. of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994). In determining
whether the Board’s findings are supported by substantial evidence, this Court must “view the
record in the light most favorable to the party that prevailed before the Board, and give that party
the benefit of all reasonable inferences that can be drawn from the evidence.” Big Mountain



                                                 4
       On appeal,4 Claimant argues that some of the Board’s factual findings are not
supported by substantial competent evidence. Claimant challenges Finding of Fact
No. 5, in which the Board found that “[C]laimant signed and turned in a form
indicating that he performed the preventative maintenance.” (FOF ¶ 5.) Claimant
argues that there is no substantial competent evidence to support the Board’s finding
in that regard because Employer failed to produce the preventative maintenance
report that Claimant allegedly falsified. Without that document, Claimant contends
that the Employer cannot meet its burden of proof. We disagree.
       Although not specifically asserted in his brief, Claimant is essentially making
an argument based upon the best evidence rule. Pennsylvania Rule of Evidence 1002
provides that “[a]n original writing, recording, or photograph is required in order to
prove its content unless these rules, other rules prescribed by the Supreme Court, or
a statute provides otherwise.” Pa.R.E. 1002. It is well-established that the technical
rules of evidence, including the best evidence rule, are generally not applicable to
administrative hearings. Section 505 of the Administrative Agency Law, 2 Pa. C.S.
§ 505; DiLucente Corp. v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298 (Pa.
Cmwlth. 1997). Accordingly, Employer was not required to produce the actual
report that Claimant allegedly falsified in this case.


Imaging v. Unemployment Comp. Bd. of Review, 48 A.3d 492, 494-95 (Pa. Cmwlth. 2012). The
Board’s findings are conclusive on appeal if the record, as a whole, contains substantial evidence
to support the findings. Mathis v. Unemployment Comp. Bd. of Review, 64 A.3d 293, 299 (Pa.
Cmwlth. 2013). “The fact that [a claimant] may have produced witnesses who gave a different
version of the events, or that [the claimant] might view the testimony differently than the Board,
is not grounds for reversal if substantial evidence supports the Board’s findings.” Tapco, Inc. v.
Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Moreover, it
is well-settled that the Board is the ultimate factfinder in UC cases and is, thus, empowered to
make credibility determinations and resolve conflicts in the evidence presented. Curran v.
Unemployment Comp. Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000).
        4
          We have reordered Claimant’s arguments for ease of discussion.


                                                5
      Moreover, the record contains independent support for the Board’s finding
that Claimant signed and turned in a form indicating that he performed preventative
maintenance on a machine. HR Specialist testified that Claimant signed and turned
in a form indicating that he performed preventative maintenance on the machine.
(Hr’g Tr. at 8.) Maintenance Manager also testified that Claimant was given a form
stating what needed to be completed for preventative maintenance and that Claimant
turned in the form. (Id. at 9.) After Claimant turned in the form, Maintenance
Manager testified that he did a “spot check,” or inspection, of the machine to make
sure the preventative maintenance work had been done correctly or even at all and
determined that the machine “wasn’t touched” by Claimant. (Id. at 9-10.) HR
Specialist also explained that Claimant received a suspension document on the day
of his suspension explaining the problem that was under investigation with regard to
his signing and turning in the preventative maintenance form. (Id. at 8.) The
suspension document, which Claimant, himself, signed and introduced into
evidence, identified the “problem” being investigated as: “[f]alsifying documents .
. . [Claimant] signed and stated that he completed PMs for box maker #1 and box
maker #2 when in fact they were not done.” (Claimant Hr’g Documents, Progressive
Discipline Report, R. Item 8.) Because this testimony, and the suspension document
submitted by Claimant, constitute “relevant evidence [that] a reasonable mind might
accept as adequate to support [the] conclusion” that Claimant signed and turned in a
form indicating that he performed preventative maintenance, it constitutes
substantial evidence to support this finding. Am. Gen. Life and Accident Ins. Co. v.
Unemployment Comp. Bd. of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth. 1994).
      Claimant also challenges Finding of Fact No. 6, in which the Board found that
“[C]laimant never actually performed the preventative maintenance.” (FOF ¶ 6.)



                                         6
Claimant argues that Employer failed to produce any competent evidence or
documentation showing Employer’s protocol for performing preventative
maintenance work. Claimant asserts that the evidence presented during the hearing
established that maintenance mechanics are afforded discretion in completing
preventative maintenance and that Claimant demonstrated that he performed a visual
inspection on the machine, as was permitted. Therefore, he asserts, the evidence
established that he performed some preventative maintenance on the machine and,
as such, the Board’s finding is not supported by substantial competent evidence.
      During the hearing, Maintenance Manager explained that preventative
maintenance on a machine involves changing oil and chains, greasing the bearings,
checking the oil in the gears and replacing it if needed, cleaning and blowing off the
machine, and generally checking “over the machine, [the] frame, [the] gears, [and
the] gear box.” (Hr’g Tr. at 10.) Maintenance Manager acknowledged that if a
machine is running, preventative maintenance cannot be performed and that he
instructed the maintenance crew in such a situation to not sign the form and to just
tell him they cannot do the preventative maintenance because the machine is
running. (Id. at 12.) Maintenance Manager testified that, upon his inspection of the
machine on which Claimant stated he had done preventative maintenance, “the
chains w[ere] not oiled, the bearings w[ere] not greased . . . he didn’t blow -- the
machine wasn’t blown off, it had dirt in the box, residue and basically a bunch of
dust all over it[,]” and “[y]ou could tell it wasn’t touched.” (Id. at 10.) While
Claimant claims that he completed some preventative maintenance on the machine,
the Board found Maintenance Manager’s testimony that his inspection of the
machine showed that the required preventative maintenance had not been completed
to be more credible, which it was empowered to do. (Bd. Order; Hr’g Tr. at 10, 15-



                                          7
16; Claimant’s Petition for Appeal, R. Item 5); see Curran v. Unemployment Comp.
Bd. of Review, 752 A.2d 938, 940 (Pa. Cmwlth. 2000). Because Maintenance
Manager’s testimony and Claimant’s admission constitute “relevant evidence [that]
a reasonable mind might accept as adequate to support [the] conclusion” that
Claimant never performed preventative maintenance on the machine despite signing
the form indicating that he had, there is substantial evidence to support this finding.
Am. Gen. Life, 648 A.2d at 1248.
      We next consider Claimant’s argument that the Board erred, generally, in
concluding that his actions constituted willful misconduct under Section 402(e) of
the Law. Whether an employee’s actions constitute willful misconduct is a question
of law reviewable by this Court. Reading Area Water Auth. v. Unemployment Comp.
Bd. of Review, 137 A.3d 658, 661 (Pa. Cmwlth. 2016). Section 402(e) of the Law
provides, in pertinent part, that “[a]n employe shall be ineligible for compensation
for any week . . . [i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work.” 43 P.S.
§ 802(e). While the Law does not define “willful misconduct,” our Court has
defined it as:

      (1) a wanton or willful disregard for an employer’s interests; (2) a
      deliberate violation of an employer’s rules; (3) a disregard for standards
      of behavior which an employer can rightfully expect of an employee;
      or (4) negligence indicating an intentional disregard of the employer’s
      interest or an employee’s duties or obligations.

Phila. Parking Auth. v. Unemployment Comp. Bd. of Review, 1 A.3d 965, 968 (Pa.
Cmwlth. 2010). The falsification of an employer’s records constitutes willful
misconduct. Diachenko v. Unemployment Comp. Bd. of Review, 457 A.2d 207, 208
(Pa. Cmwlth. 1983). The employer bears the burden of proving a claimant’s willful


                                          8
misconduct. Spirnak v. Unemployment Comp. Bd. of Review, 557 A.2d 451, 453
(Pa. Cmwlth. 1989). Moreover, as the prevailing party below, Employer “is entitled
to the benefit of all reasonable inferences drawn from the evidence.” Ductmate
Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth.
2008). If an employer makes a showing of willful misconduct, the burden shifts to
the claimant to establish good cause for his or her actions. Phila. Parking Auth., 1
A.3d at 968. “A claimant has good cause if his or her actions are justifiable and
reasonable under the circumstances.” Docherty v. Unemployment Comp. Bd. of
Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).
      As previously stated above, Employer established that Claimant was assigned
preventative maintenance on a certain machine and that he signed and turned in a
form indicating that he performed the preventative maintenance on the machine.
(FOF ¶¶ 4-5; Hr’g Tr. at 8-10.) Employer also credibly established that Claimant
never actually completed the preventative maintenance on the machine despite
signing and turning in the form indicating that he had. (FOF ¶ 6; Hr’g Tr. at 10-11.)
Claimant conceded in both his Petition for Appeal to the Referee and his testimony
that he did not indicate on the form that he only visually inspected the machine. (Bd.
Order; Hr’g Tr. at 15-16; Claimant’s Petition for Appeal, R. Item 5.) In turn, because
Claimant signed the form indicating that he completed the preventative maintenance
when really he had only performed a visual inspection of the machine, it resulted in
Claimant’s discharge for falsification of Employer’s records.         (FOF ¶¶ 4-7.)
Employer had a reasonable expectation that Claimant would accurately fill out the
preventative maintenance form, and if he could not perform the preventative
maintenance in its entirety, Claimant should have so indicated on the form or
followed Maintenance Manager’s directive not to sign the form for work that was



                                          9
not completed. Thus, Employer met its burden of proving that Claimant’s actions
in falsifying the report constituted a disregard of Employer’s interests, which
constituted willful misconduct.
      We also agree with the Board that Claimant has not established good cause
for his actions. Claimant attempts to justify his actions by asserting that the machine
was running, such that he could not complete the required preventative maintenance,
and that he performed some preventative maintenance on the machine by visually
inspecting it and consulting with the machine operator about how the machine was
running. However, the Board found that “while . . . [C]laimant testified that he did
a visual inspection of the machine, he also admitted that he did not note that on the
work order and did not adequately explain why he did not do that.” (Bd. Order; Hr’g
Tr. at 15-16; Claimant’s Petition for Appeal, R. Item 5.) Therefore, because
Claimant disregarded Employer’s interests by falsifying company records, and
because Claimant has not established good cause for doing so, the Board did not err
in finding Claimant ineligible for benefits pursuant to Section 402(e) of the Law.




      Accordingly, the Board’s Order is affirmed.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony L. Forsythe, Sr.,                   :
                            Petitioner      :
                                            :
                  v.                        :   No. 747 C.D. 2017
                                            :
Unemployment Compensation                   :
Board of Review,                            :
                    Respondent              :


                                         ORDER


      NOW, February 2, 2018, the May 5, 2017 Order of the Unemployment
Compensation Board of Review, entered in the above-captioned matter, is
AFFIRMED.




                                          _____________________________________
                                          RENÉE COHN JUBELIRER, Judge
