             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey M. Kengerski,                           :
                  Petitioner                    :
                                                :
                v.                              :
                                                :
Unemployment Compensation                       :
Board of Review,                                :    No. 484 C.D. 2016
                 Respondent                     :    Submitted: November 18, 2016



BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JULIA K. HEARTHWAY, Judge
                HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                    FILED: April 19, 2017

                Jeffrey Kengerski (Claimant) petitions for review of a March 2, 2016
Decision and Order of the Unemployment Compensation Review Board (Board),
which denied Claimant unemployment compensation benefits under Section 402(e)
of the Unemployment Compensation Law1 (Law). Upon review, we affirm.
                Claimant was employed as a full-time corrections officer with the
rank of captain by the Allegheny County Jail (Employer) from February 2002 until
November 24, 2015.2 In September 2015, a subordinate female corrections officer,

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).

       2
         Except where noted otherwise, the facts are derived from the findings of fact set forth in
the order of the Board dated March 2, 2016.
Alyssia Tucker (Tucker), reported to Claimant that she had received unwanted
texts and e-mails from a co-worker, Sergeant Michael Brown (Brown) and
Brown’s wife. Claimant reported this to a Major at the jail, but took no further
action. (Certified Record (C.R.) Item 9, Transcript of Testimony with Exhibits, at
21.) Tucker resolved the issues with Brown and his wife on her own.
      Two months after the complaint was filed, Claimant attended a mandatory
sexual harassment training seminar, after which he realized he should have
reported the incident with Tucker and Brown to his superior. The Major to whom
he previously reported was no longer at the jail and Claimant was unsure whether
the matter had been handled correctly.       (C.R., Transcript at 21.)    Therefore,
Claimant reported the incident to Deputy Warden Wainwright (Wainwright), who
advised Claimant he was concerned the matter had not been reported previously
and directed Claimant to submit a report. Wainwright also directed Tucker to
submit a report detailing the incident with Brown.
             Claimant called Tucker and advised her to write in her report that she
and Brown met with the Major and resolved the issue. Tucker submitted a report
but declined to include this information and informed Wainwright that Claimant
asked her to lie in her report. Claimant approached Brown and notified him about
the investigation taking place and asked him to report having met with the Major.
Brown reported to his union representative that Claimant informed him about the
investigation and that Claimant asked him to lie about meeting with the Major.
             On November 24, 2015, Claimant was discharged for interfering with
the investigation. More specifically, he was terminated for directing a subordinate
officer to lie in a report and for informing the subject of the investigation that he
was being investigated. Claimant applied for and was granted unemployment


                                         2
compensation benefits. Employer appealed to a referee, who held a hearing and
issued a decision denying Claimant benefits. Claimant appealed to the Board,
which issued an order on March 2, 2016, affirming the decision of the Referee.
Claimant appealed3 to this Court.
              As set forth in his brief, Claimant raises the following two issues:

              (1) Whether the Employer provided competent and admissible
                  evidence before the Referee on why Petitioner/Claimant
                  was terminated.

              (2) Whether the two (2) other Employer fact witnesses were
                  credible.

              Claimant first argues Employer failed to establish he committed
willful misconduct because Employer presented no witness with first-hand
knowledge of the termination.
              Wainwright testified he received reports from and interviewed both
Tucker and Brown about Claimant’s attempts to influence their reports. (C.R.
Transcript at 10.) Wainwright was not involved in the decision to terminate
Claimant. Id. That decision was made by the Warden. Id. As Wainwright was not
the Warden, it is arguable he lacked first-hand knowledge of the reason for
Claimant’s termination. This lack of first-hand knowledge, Claimant appears to
argue, renders Wainwright’s testimony incompetent and inadmissible hearsay.
              A witness is competent to testify about matters of which he has
personal knowledge. Pa.R.E. 602. “Testimony as to an out-of-court statement is


       3
         This Court’s review is limited to a determination of whether constitutional rights were
violated, errors of law were committed, or findings of fact were not supported by substantial
evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 n.2 (Pa.
Cmwlth. 2010).

                                               3
not hearsay if offered to prove, not that the content of the statement was true, but
that the statement was made.” Commonwealth v. Sampson, 311 A.2d 624, 626 (Pa.
Super. 1973). Wainwright personally interviewed Tucker and Brown and testified
to the information divulged to him during those interviews. We cannot conclude
Wainwright’s testimony was either incompetent or hearsay.
                A review of the record makes the reasons Claimant was terminated
abundantly clear. Claimant’s own exhibits offered at the hearing in front of the
Referee refute his argument that no admissible evidence was presented as to the
reasons for Claimant’s termination. A memorandum from the Warden to Claimant
notified him a post-termination hearing was scheduled to give Claimant an
opportunity to respond to the charges that led to his termination.                    This
memorandum unequivocally stated Claimant was terminated based on: 1) receipt
of a report from Tucker that Claimant instructed her to lie on an official report; and
2) receipt of a report from Brown that Claimant gave him advance warning of the
sexual harassment investigation and Claimant instructed Brown to lie on an official
report. (C.R. at C-3.)
                Section 402(e) of the Law provides 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, irrespective of whether or not such work is “employment” as
defined in this act[.]” 4 While the burden to show Claimant committed willful
misconduct certainly falls on the Employer, Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999), a letter of

       4
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).

                                              4
termination need not include those words before a Claimant may be denied
benefits under Section 402(e) of the Law.
             Despite Claimant’s argument to the contrary, it is abundantly clear the
evidence presented against him was competent, and did not constitute inadmissible
hearsay.
             Claimant next argues that Employer’s fact witnesses were not
credible. While subject to our review as the first judicial officers examining the
matter, in unemployment compensation review cases, the Board is the ultimate
finder of fact and arbiter of credibility.       See Ductmate Industries, Inc. v.
Unemployment Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
Upon appeal the Board’s finding of facts are taken as conclusive, “so long as the
record, taken as a whole, contains substantial evidence to support those findings.”
Penflex, Inc. v. Bryson, 506 A.2d 274 (Pa. 1984). Substantial evidence is “such
relevant evidence which a reasonable mind may accept as adequate to support a
conclusion.” Guthrie, 738 A.2d at 521.
             Claimant argues there was not substantial evidence to support the
Board’s findings, as the witnesses presented by the Employer were not credible
and presented inconsistent testimony.         The testimony of Tucker, Claimant
contends, was inconsistent and did not support a finding he instructed her to lie.
Additionally, Claimant argues that Sergeant Brown gave inconsistent testimony,
first stating he knew about the investigation before he spoke to the Claimant, then
testifying he heard about the investigation for the first time from Claimant.
Claimant contends that the evidence presented at the hearing thus did not amount
to substantial evidence, as the witnesses weren’t credible.




                                          5
             In the report submitted by Brown, he avers that on November 23,
2015, he was notified of a situation involving allegations of sexual harassment.
(C.R. Exhibit 6.)      As Brown was headed to a meeting with his union
representative, he was informed Claimant wished to speak with him. Id. Brown
alleged in his report that Claimant didn’t want him “blind-sided when
administration [called him] over about this.” Id. Brown further alleged Claimant
told him “don’t say anything about this conversation, if anybody asks say we spoke
about fantasy football.” Id. Brown testified at the January 12, 2016 hearing that
he was heading to a meeting with his union representative when asked to speak
with Claimant. (C.R., Transcript at 19-20.) Brown also testified that Claimant
made him aware of the pending investigation.         Id. at 17. The remainder of
Brown’s testimony is entirely consistent with the details set forth in the report he
submitted. Id. at 17-18. Claimant testified he believed Brown was already aware
of the investigation the day he spoke to him. Id. at 22, 27-28.
             Claimant’s argument hinges on his assertion that the witnesses against
him were not credible. To the extent the testimony of Brown is inconsistent with
the report he filed (whether he knew about the sexual harassment allegations prior
to Claimant approaching him), the Board is the ultimate fact-finder. It determines
the credibility of the witnesses and the weight assigned to evidence. The Board
explicitly resolved conflicts in testimony in favor of Employer and found that
Claimant’s actions in giving advance notice to Brown of the investigation and in
attempting to influence the reports filed by Brown and Tucker were below the
standards of behavior the Employer had a right to expect. Questions of credibility
and the resolution of evidentiary conflicts are within the sound discretion of the
Board and are not subject to re-evaluation on judicial review.             Peak v.


                                          6
Unemployment Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. 1985).
Credibility findings of the Board generally cannot be disturbed.
            For these reasons, the Order of the Board is Affirmed.




                                      ___________________________
                                      JOSEPH M. COSGROVE, Judge




                                         7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey M. Kengerski,                :
                  Petitioner         :
                                     :
            v.                       :
                                     :
Unemployment Compensation            :
Board of Review,                     :   No. 484 C.D. 2016
                 Respondent          :


                                 ORDER


            AND NOW, this 19th day of April, 2017, the March 2, 2016 Order of
the Unemployment Compensation Board of Review is affirmed.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge
