               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melissa Stanish,                               :
                      Petitioner               :
                                               :
              v.                               : No. 1683 C.D. 2016
                                               : Submitted: March 17, 2017
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: June 7, 2017

              Melissa Stanish (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) that Claimant is
ineligible for benefits under the Unemployment Compensation Law (Law). 1 The
Board ruled Claimant ineligible under Section 402(e) of the Law, 43 P.S. §802(e),2
because she did not disclose all of her prior criminal convictions when she applied
for her job with her former employer. In doing so, the Board reversed the decision
of the Referee, who found that Claimant’s non-disclosure did not constitute
disqualifying willful misconduct. We vacate the Board’s order and remand.



1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
918.10.
2
   Section 402(e) states 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).
             Claimant worked as a personal care aide for Just Like Family Home
(Employer), a home health care services provider, from June 1, 2016, until she was
discharged on June 16, 2016. The stated reason for Claimant’s discharge was that
a background check revealed “multiple charges” that Claimant “did not disclose …
on her application or when asked during [the] interview process.” Certified Record
Item No. 4 (C.R. __), at 1. Claimant applied for unemployment compensation
benefits. The UC Service Center denied her claim, finding her ineligible under
Section 402(e) of the Law. Claimant appealed and a hearing was held by the
Referee.
             Anthony Miller, Employer’s president, testified that Claimant was
suspended and later discharged for failing to disclose all of her prior criminal
convictions when she applied for her job. The job application asked, “have you
ever been convicted of a felony or misdemeanor?” C.R. 10, Exhibit 10, at 1.
Claimant circled “YES” and wrote “Misdemeanor in 1991 for bad checks.” Id.
The application also contained a certification, signed by Claimant, that

             all of the information provided in this application is correct. I
             have not misrepresented any facts, nor have I failed to provide
             you with any information that is necessary in evaluating my
             possible employment with [Employer]. I understand that, if
             employed, falsified statements on this application shall be
             grounds for dismissal.

Id. at 2. Miller testified that a criminal background check revealed eight additional
misdemeanor convictions that included theft by deception and conspiracy to
commit theft.     Miller explained that this additional information concerned
Employer for two reasons. First, Employer provides in-home nursing care to the
elderly, who are susceptible to theft by deception, and, thus, prefers not to employ

                                         2
individuals who have committed that offense.                  Second, at the time Claimant
applied for her job, Employer was prohibited by law from hiring someone with
Claimant’s record.3 Miller was aware that Claimant believed her convictions had
been expunged, and told her if that was true and she could produce a clean
background check he would consider her for employment. Nevertheless, Miller
testified that he decided to discharge Claimant because he could not send a person
with her criminal record into an elderly person’s home.
               Claimant     acknowledged        that    she    disclosed     only    her    1991
misdemeanor conviction for writing bad checks when she applied for her job with
Employer. She testified that she did not disclose the other convictions that sprang
from the same offense, because her attorney and probation officer both assured her
that those convictions would be expunged when she completed her sentence.
Claimant testified that she had been the subject of numerous background checks
and employment clearances over the years and all of them indicated she had “no
record.” Notes of Testimony, August 5, 2016, at 14 (N.T. __). Claimant testified
that she did not misrepresent her criminal history “because I was actually told that
I could truthfully you know disregard [the convictions] and not disclose them
because of my sentencing agreement.” Id. at 15.
               The Referee found that Claimant did not deliberately misrepresent her
criminal history, although she could have been more forthcoming. She did, in fact,

3
  The law has since changed. In Peake v. Commonwealth, 132 A.3d 506 (Pa. Cmwlth. 2015),
this Court struck as unconstitutional a provision in the Older Adults Protective Services Act, Act
of November 6, 1987, P.L. 381, as amended, 35 P.S. §§10225.101 – 10225.5102, which imposed
a lifetime ban for people convicted of certain enumerated offenses from working in care of older
adults. Miller acknowledged this change in the law but stated that hiring decisions are the
province of the employer.


                                                3
disclose one conviction arising from the same offense. The Referee also found that
Employer did not establish that the charges were material to Claimant’s
qualification for the position of personal care aide. The Referee further noted that
the charges had been filed more than 20 years ago and no longer disqualified
Claimant from working with the elderly under state law.4 For these reasons, the
Referee concluded that Claimant did not commit willful misconduct and, therefore,
was not ineligible for benefits under Section 402(e) of the Law.               Employer
appealed.
                  On appeal, the Board reversed the Referee’s decision.        Crediting
Miller’s testimony, the Board found that Employer established that it required
applicants for employment to complete an application with full disclosure of
previous convictions. The Board noted that the application did not contain an
exception for expunged convictions. The Board further explained:

                  The Board specifically discredits the claimant’s testimony that
                  she thought she was not under an obligation to disclose the
                  previous criminal convictions for theft-related offenses.
                  Moreover, the Board rejects the claimant’s argument that it was
                  unreasonable to require her to disclose the previous convictions.
                  Instead the Board finds that the claimant knew the convictions
                  were on her record. The claimant purposely did not disclose the
                  prior convictions. The claimant was not truthful on her
                  application. The claimant did not show good cause for her
                  actions.

Board Adjudication at 3. The Board concluded that Claimant’s omission in her
criminal history was material to her employment with Employer. Accordingly, the



4
    See fn. 3, supra.


                                              4
Board held that Claimant’s willful misconduct rendered her ineligible for benefits
under Section 402(e) of the Law. Claimant petitioned for this Court’s review.
             On appeal,5 Claimant argues that the Board erred in holding that she
committed willful misconduct by not disclosing the additional convictions
discovered by Employer in its background check. Claimant asserts that she had
good cause for her non-disclosure because her attorney and probation officer
advised her that the convictions would be expunged and she would not need to
disclose them in the future. To support her claim that she justifiably relied on the
advice of her attorney and probation officer, Claimant points to her testimony that
other background checks came back “clean.”              Claimant emphasizes that she
disclosed the one conviction she thought had not been expunged.
             In an unemployment compensation case, “the Board is the ultimate
fact-finder and is empowered to make credibility determinations.”                Russo v.
Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth.
2010).   The Board’s discretion is not unlimited.          In Treon v. Unemployment
Compensation Board of Review, 453 A.2d 960 (Pa. 1982), the claimant refused to
continue his employment as a bricklayer after his employer assigned him to a job
site 300 miles from his home. In ruling that the claimant quit with necessitous and
compelling cause, the referee found as fact that the claimant had alleged the
commute was too long and cost-prohibitive, and expressed concern that work
might not be steady due to anticipated weather conditions. Id. at 962. On appeal,

5
  “Our scope of review is limited to a determination of whether constitutional rights were
violated, [whether] an error of law was committed or whether necessary findings of fact are
supported by substantial competent evidence.” Seton Company v. Unemployment Compensation
Board of Review, 663 A.2d 296, 298 n.2 (Pa. Cmwlth. 1995).


                                            5
the Board neither adopted that factual finding nor asserted that it was not credible
or unsupported by evidence. On further appeal, our Supreme Court held:

              The Board certainly had the right to disbelieve [the claimant’s]
              testimony, even though that testimony was uncontradicted.…
              Nevertheless, the Board did not have the right to arbitrarily and
              capriciously disregard the findings of the referee after the
              referee had listened to the testimony of the only witness and
              observed his demeanor, and had made findings of fact based
              upon that uncontradicted testimony.…
              If particular findings are inconsistent, incredible or unsupported
              by the evidence, then the Board must so indicate. The Board
              may not, however, simply disregard findings made by the
              referee which are based upon consistent and uncontradicted
              testimony without stating its reasons for doing so.

Id. (citations omitted).6
              Here, Claimant asserted that she had good cause for not disclosing the
1992 convictions because she believed they had been expunged.                        Without
expressly stating so, the Referee credited this testimony, which was
uncontradicted, in finding that Claimant did not deliberately misrepresent her
criminal record.7 The Board discredited Claimant’s testimony without stating its
reasons for doing so, as required by Treon. Accordingly, we vacate the Board’s


6
  Conversely, the Board is not required to give its reasons for reversing a referee’s decision
where conflicting evidence has been presented. Brocker Manufacturing & Supply Company, Inc.
v. Unemployment Compensation Board of Review, 504 A.2d 413, 414 (Pa. Cmwlth. 1986) (citing
Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1385 (Pa. 1985)).
7
  Claimant’s state of mind is crucial to the outcome of her appeal since benefits are properly
denied “when a claimant’s discharge stems from a false or incomplete statement on an
employment-related application document if the misrepresentation is knowing and material to the
employee’s qualifications for the job at issue, regardless of whether the misrepresentation
pertains to a specific job prerequisite.” Sill-Hopkins v. Unemployment Compensation Board of
Review, 563 A.2d 1288, 1290 (Pa. Cmwlth. 1989) (emphasis added).


                                              6
order and remand for it to issue a new adjudication on Claimant’s appeal that
explains the basis for its credibility determination.

                                     ______________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                           7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Melissa Stanish,                         :
                   Petitioner            :
                                         :
            v.                           : No. 1683 C.D. 2016
                                         :
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


                                    ORDER


            AND NOW, this 7th day of June, 2017, the order of the
Unemployment Compensation Board of Review, dated September 29, 2016, is
VACATED and the above-captioned matter is REMANDED for further
proceedings in accordance with the attached opinion. Jurisdiction is relinquished.


                                   ______________________________________
                                   MARY HANNAH LEAVITT, President Judge
