           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Fresh Foods, LLC,                 :
                   Petitioner                  :
                                               :
              v.                               :    No. 140 C.D. 2017
                                               :    SUBMITTED: September 29, 2017
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                      FILED: November 14, 2017


              Philadelphia Fresh Foods, LLC (Employer) petitions for review of the
December 30, 2016, order of the Unemployment Compensation Board of Review
(Board), which reversed the referee’s decision denying Anthony Watson (Claimant)
unemployment compensation (UC) benefits under Section 402(e) of the
Unemployment Compensation Law (Law)1 for willful misconduct. We affirm.


              Claimant applied for UC benefits following his termination from
employment with Employer, and the Lancaster UC Service Center (Department)


    1
      Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week
“[i]n which his unemployment is due to his discharge … from work for willful misconduct
connected with his work.” 43 P.S. § 802(e).
denied benefits pursuant to Section 402(e) of the Law, 43 P.S. § 802(e). (R.R. at
29a.) Claimant appealed to a referee, who conducted a hearing at which Claimant
and three witnesses for Employer appeared and testified. Subsequently, the referee
issued a decision affirming the Department and denying Claimant UC benefits under
Section 402(e) of the Law, 43 P.S. § 802(e). (R.R. at 85a.)


            Claimant appealed to the Board, which made the following findings of
fact:

            1. Philadelphia Fresh Foods LLC employe[d] the
               claimant from June 11, 2015 through August 15, 2016,
               earning $70,000 per year.

            2. The employer maintains a policy, that the claimant
               should have been aware of, prohibiting workplace
               violence and defines it as such: (1) physical assault or
               threats of physical harm to oneself or others; (2) verbal
               abuse, including vulgar or obscene language,
               derogatory comments[,] verbal intimidation, excessive
               criticism, name calling or any threatening comments;
               (3) conduct that threatens, intimidates, or coerces
               another team member, a guest, or a member of the
               public at any time, including off-duty periods, will not
               be tolerated. This prohibition includes all acts of
               harassment including harassment that is based on an
               individual’s sex, race, age, color, national origin,
               sexual orientation or any characteristic protected by
               Federal, State, or Local Law.

            3. The employer’s policy provides for disciplinary actions
               including termination.
            4. On August 4, 2016, a group gathered outside the
               employer’s restaurant to protest the killing of a black
               female by a police officer.



                                         2
             5. Both the claimant and the Assistant Manager went
                outside to talk with the police and protestors.
             6. The Assistant Manager noticed the conversation
                between the claimant and the protestors was escalating
                and convinced the claimant to go back in the store.
             7. The employer received a complaint from one of the
                individuals involved in the protest about the claimant.
             8. The employer discharged the claimant for allegedly
                violating its policy prohibiting workplace violence.

(Board’s Findings of Fact (F.F.) Nos. 1-8.) The Board found Employer discharged
Claimant for violating its policy prohibiting workplace violence by allegedly saying
“People like you are the reason your men are killing each other.” (Board’s Decision
(Dec.) at 2.) The Board, however, found that Claimant credibly testified that he did
not make this statement or any other disparaging comments to the protestors.
(Board’s Dec. at 2.) The Board, therefore, determined Claimant was not ineligible
for benefits under Section 402(e) of the Law, 43 P.S. § 802(e), and reversed the
referee’s decision and granted Claimant UC benefits. (Board’s Dec. at 2-3.)


             Employer now petitions this Court for review of the Board’s order.
Employer argues that the Board erred by reversing the referee’s factual findings and
by concluding that Claimant’s conduct did not constitute willful misconduct.2


             The employer bears the burden of proving that the employee engaged
in willful misconduct connected with his work. See Section 402(e) of the Law, 43
P.S. § 802(e); Chapman v. Unemployment Compensation Board of Review, 20 A.3d

    2
       Because these arguments raise questions of law, our review is plenary. Navickas v.
Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001) (stating whether
activity constitutes willful misconduct is a question of law subject to plenary review).


                                           3
603, 606 (Pa. Cmwlth. 2011). Whether an employee’s conduct constitutes willful
misconduct is a question of law subject to this Court’s review. Chapman, 20 A.3d
at 606. Willful misconduct has been defined as conduct that represents: (1) a wanton
or willful disregard of an employer’s interests; (2) a deliberate violation of the
employer’s rules; (3) a disregard of standards of behavior that the employer can
rightfully expect from its employees; or (4) negligence indicating an intentional
disregard of the employer’s interest or an employee’s duties or obligations. Id. at
606-07. Where a charge of willful misconduct is based on the violation of a work
rule, the employer must prove the existence of the rule and its violation by the
employee. Eagle v. Unemployment Compensation Board of Review, 659 A.2d 60,
62 (Pa. Cmwlth. 1995).


             Employer argues that there is overwhelming evidence establishing that
Claimant engaged in a verbal altercation with prospective customers over the subject
of their protest, and that Claimant’s conduct constituted willful misconduct under
any of the four definitions set forth above. Employer points out that there was
testimony that Claimant called the group a derogatory term, and that the referee
found that during Employer’s investigation, Claimant admitted making a statement
similar to “It’s people like you, that’s the reason your men are killing each other.”
(Referee’s F.F. No. 13.) Employer also points out that the referee found that the
assistant manager had to physically remove Claimant from the group. (Referee’s
F.F. No. 9.) Employer maintains that Claimant acted contrary to its policy of
welcoming any groups organizing in the courtyard near its premises by offering the
groups free food samples. Employer argues that because the referee’s findings were
supported by “overwhelming evidence,” (Claimant’s brief at 13), the Board erred in



                                         4
reversing the referee when the Board did not take any further testimony and did not
observe the witnesses. In support of its position, Employer relies on our Supreme
Court’s decision in Treon v. Unemployment Compensation Board of Review, 453
A.2d 960 (Pa. 1982). Employer’s arguments are without merit.


               In explaining the Treon decision, this Court stated:

               In Treon, the Board rejected a referee’s finding that was
               based on the consistent, uncontradicted testimony of one
               witness. Treon, 453 A.2d at 961. The Pennsylvania
               Supreme Court held the Board could not disregard a
               referee’s findings of fact based on consistent,
               uncontradicted testimony without stating its reasons for
               doing so. Id. at 962–963. However, the court explicitly
               limited its holding, noting “[i]n this case ... we are
               concerned not with findings made by the Board, but with
               findings made by the referee which the Board failed to
               adopt.” Id. at 962. Further, “[t]he Board certainly had the
               right to disbelieve [the claimant’s] testimony, even though
               that testimony was uncontradicted.” Id. Thus, our
               Supreme Court found error in the Board’s unexplained
               failure to adopt a crucial finding of the referee that was
               based on uncontradicted evidence.
Chapman, 20 A.3d at 612 (citations to Pa. reporter omitted).


               Employer mistakenly relies on Treon for the proposition that the Board
must defer to the referee’s findings. Employer “fails to recognize that where factual
matters are in dispute, and both sides offer testimony, the Board is the ultimate finder
of fact with power to substitute its judgment for that of its referees.” Chapman, 20
A.3d at 612.




                                           5
              At the hearing, Claimant denied calling the protestors a derogatory term
and denied making the statement as alleged by Employer. (R.R. at 76a, 78a-79a; see
R.R. at 75a, Board’s decision at 2.) Claimant also disputed having to be physically
removed from the situation. (R.R. at 77a; see Board’s F.F. No. 6.) Claimant testified
that he was the one being threatened and that he felt intimidated. (R.R. at 79a; see
Board’s decision at 2.)      The Board recognized that there was a conflict between
the testimony of Employer’s witnesses and Claimant’s testimony. (Board’s decision
at 2.) Unlike the referee, however, the Board chose to credit the conflicting
testimony in favor of Claimant, not Employer. (Board’s decision at 2.) It was within
the Board’s power to disagree with the referee’s factual resolution of conflicting
evidence. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383,
1387 (Pa. 1985); see Section 504 of the Law, 43 P.S. § 824 (stating that the Board
may reverse the determination of the department or referee on the basis of the
evidence previously submitted in the case).


              Given the facts as found by the Board,3 we cannot conclude that
Claimant committed willful misconduct. Employer’s argument that Claimant’s
actions rose to the level of willful misconduct is premised on its preferred version of
the facts, which is contrary to the facts found by the Board. As the Board points out,
Employer’s argument is nothing more than an invitation for this Court to re-weigh
the evidence, which we cannot do in our appellate role.                     See Stringent v.
Unemployment Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth.

    3
      Where, as here, the Board’s findings of fact are supported by substantial evidence, we are
bound by those findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829,
831 (Pa. 1977). Moreover, Employer has not challenged any specific findings of fact, so the
findings are now binding on this Court. Salamak v. Unemployment Compensation Board of
Review, 497 A.2d 951, 954 (Pa. Cmwlth. 1985).


                                               6
1997) (stating that questions of credibility and evidentiary weight to be given to
conflicting testimony are matters for the Board as factfinder and not for a reviewing
court).


             Accordingly, we affirm.



                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Senior Judge




                                         7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philadelphia Fresh Foods, LLC,       :
                   Petitioner        :
                                     :
            v.                       :   No. 140 C.D. 2017
                                     :
Unemployment Compensation            :
Board of Review,                     :
                 Respondent          :



                                 ORDER


            AND NOW, this 14th day of November, 2017, we hereby affirm the
order of the Unemployment Compensation Board of Review in the above-captioned
matter.


                                   _____________________________________
                                   BONNIE BRIGANCE LEADBETTER,
                                   Senior Judge
