               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pinnacle Health Hospitals,                 :
                         Petitioner        :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 1277 C.D. 2019
                    Respondent             :   Submitted: May 11, 2020


BEFORE:      HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: June 5, 2020

             Pinnacle Health Hospitals (Employer) petitions this Court for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) August 20, 2019
order affirming the Referee’s decision granting David J. Lisco (Claimant) UC
benefits under Section 402(e) of the UC Law (Law).1 The sole issue before this
Court is whether the UCBR erred by granting Claimant UC benefits under Section
402(e) of the Law. After review, we reverse.
             Employer employed Claimant as a full-time Clinical Staff Pharmacist
from December 5, 2005, until August 24, 2017. Employer maintains an Electronic
Communication Media policy (ECM Policy), which provides that “occasional,
limited personal use of non-work time of [Employer’s] System Internet/E-Mail
connection is allowed when it does not interfere with the efficiency of the employee
or the business of [Employer].” Reproduced Record (R.R.) at 76a. Claimant was

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to discharge from work for willful misconduct).
aware of the ECM Policy. See R.R. at 61a. Employer interprets the ECM Policy to
prohibit use of the internet during work time. The ECM Policy further advises,
“[e]mployees who use such media for private, non-job-related purposes do so at their
own risk.” R.R. at 76a. The ECM Policy provides for corrective action, up to and
including termination of employment. See id.
            On July 6, 2017, Employer suspended Claimant for purportedly
changing a medication prescription for a patient without a physician’s approval. On
August 10, 2017, Employer issued Claimant an Action Plan. The Action Plan sought
to have Claimant minimize medication errors and to use his time more efficiently.
Employer warned Claimant that there was a concern with the amount of time he spent
on the internet. Claimant occasionally used the internet for personal use, but only in
between orders or when work was slow. On August 17, 2017, Employer sought a
report from its Information Technology (IT) department to investigate Claimant’s
internet usage.   On August 18, 2017, Claimant committed a medication error.
Employer’s IT department provided Employer with reports for the weeks of August
10 through 17, 2017, and August 17 through 22, 2017 (Reports). The Reports include
internet sites not actually accessed by the user, but which are embedded
advertisements. Social media sites are blocked, but Facebook was displayed on the
Reports as being accessed.     After reviewing the Reports, Employer discharged
Claimant on August 24, 2017, for his purported use of non-work-related internet
during work time. Thereafter, Claimant applied for UC benefits.
            On October 5, 2017, the Harrisburg Overflow Center (UC Service
Center) determined that Claimant was ineligible for UC benefits due to his willful
misconduct, pursuant to Section 402(e) of the Law. Claimant appealed and a Referee
hearing was held on November 14, 2017. Claimant appeared and testified, but
Employer did not. On November 22, 2017, the Referee reversed the UC Service
Center’s Determination.
                                          2
              On December 7, 2017, Employer appealed to the UCBR and requested
the hearing be reopened. On February 23, 2018, the UCBR ordered that the matter be
remanded to the Referee to receive testimony and evidence on Employer’s reason for
its nonappearance at the previous hearing, and to receive testimony and evidence on
the merits. On March 18, 2018, the Referee held a hearing at which Employer
presented testimony and evidence. The UCBR subsequently ordered an additional
hearing, which was held on April 30, 2018, to determine whether the Notice of
Hearing was mailed from the Referee’s office.
              On June 26, 2018, the UCBR affirmed the Referee’s decision granting
Claimant UC benefits, finding that there was insufficient evidence to overcome the
presumption that Employer received the Notice of Hearing. The UCBR declined to
consider Employer’s substantive evidence on the merits presented at the remand
hearing, and concluded that Employer failed to meet its burden to establish willful
misconduct. Employer appealed to this Court. On May 31, 2019, this Court held
that, given the specific factual circumstances, the presumption did not apply to
Employer. Accordingly, this Court reversed the UCBR’s order and remanded the
matter to the UCBR for consideration of the evidence Employer submitted
concerning the merits of Claimant’s appeal.2 On August 20, 2019, the UCBR again
affirmed the Referee’s decision. Employer appealed to this Court.3
              Initially, “[t]he issue of whether Claimant’s conduct constituted willful
misconduct under Section 402(e) of the Law is a question of law fully reviewable by



       2
         See Pinnacle Health Hosps. v. Unemployment Comp. Bd. of Review, 210 A.3d 1127 (Pa.
Cmwlth. 2019).
       3
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 3
this Court.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006, 1010 (Pa.
Cmwlth. 2014). This Court has explained:

             Although the Law does not define willful misconduct, it has
             been construed by our Court as: (1) the wanton or willful
             disregard of the employer’s interests; (2) the deliberate
             violation of the employer’s rules/directives; (3) the
             disregard of the standards of behavior which an employer
             can rightfully expect from an employee; and (4) negligence
             demonstrating an intentional disregard of the employer’s
             interest or the employee’s duties and obligations. The
             employer bears the burden to prove that a discharged
             employee was guilty of willful misconduct.
             We note that mere incompetence, inexperience, or inability
             to perform a job generally will not support a finding of
             willful misconduct. However, it is well-established that
             an employee’s failure to work up to his or her full,
             proven ability, especially after multiple warnings
             regarding poor work performance, must be construed
             as willful    misconduct     because     such     conduct
             demonstrates an intentional disregard of the employer’s
             interest or the employee’s obligations and duties.

Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643, 647-48 (Pa. Cmwlth.
2012) (footnote and citations omitted; emphasis added); see also Gardner v.
Unemployment Comp. Bd. of Review, 454 A.2d 1208, 1209 (Pa. Cmwlth. 1983)
(“Poor work performance reflecting an unwillingness to work to the best of one’s
ability is indicative of a disregard for the standard of conduct an employer has a right
to expect and may rise to the level of willful misconduct.”).
             Further,

             ‘[w]here willful misconduct is based upon the violation of a
             work rule, the employer must establish the existence of the
             rule, its reasonableness, and [] the employee was aware of
             the rule. Once employer meets this burden, the burden
             shifts to the claimant to prove that the rule was
             unreasonable or that he had good cause for violating the
             rule.’

                                           4
Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 482 (Pa. Cmwlth. 2018)
(quoting Weingard v. Unemployment Comp. Bd. of Review, 26 A.3d 571, 574-75 (Pa.
Cmwlth. 2011) (citation omitted)).
               Employer argues that the UCBR failed to consider substantial record
evidence establishing that Claimant engaged in willful misconduct by his repeated
personal internet use during work time in violation of Employer’s ECM policy, and
his repeated medication errors.4

       4
          In its brief to this Court, the UCBR argues that the basis for Claimant’s discharge was
excessive internet use, and not Claimant’s repeated medication errors, given that “Employer’s
response to the [Department of Labor and Industry’s (Department)] notice of application states only
‘excessive non-work[-]related internet use on paid time[.]’” UCBR Br. at 8. The UCBR
disingenuously and inaccurately characterizes the record evidence. On the same date and time that
Employer filed its response to the Department’s notice of application, it included Employer’s
completed Employer Questionnaire, which described the reasons for Claimant’s separation as
“willful misconduct . . . . See attached conference record[].” R.R. at 7a (emphasis added).
Further, in response to the question, “Was there any misconduct involved in the claimant’s
unsatisfactory work performance[,]” Employer again referenced the conference record. R.R. at 8a.
The conference record, which memorialized Claimant’s termination conference interview,
describes repeated incidents involving Claimant’s medication errors, Claimant’s suspension
resulting from a medication error, and Employer’s attempts to correct Claimant’s conduct by
issuing Claimant an Action Plan, which was followed by additional medication errors while
Claimant was using the internet. After summarizing the medication errors, Employer explained
that Claimant’s employment was being terminated for both “failure to meet the performance
expectations of a Clinical Staff Pharmacist and violation of HR Policy #10 Electronic
Communication Media.” R.R. at 10a (emphasis added).
        The UCBR further justifies its conclusion that Claimant’s employment was terminated only
for his internet use by asserting that “Claimant’s discharge came after Employer’s management
reviewed the IT reports on Claimant’s internet use.” UCBR Br. at 8. However, the record evidence
reflects that Claimant’s employment termination also came after his final medication error, which
occurred during a time period in which Claimant had been using the internet to conduct a job
search. See R.R. at 10a, 56a.
        Although “it is well-settled that the [UCBR] is the final arbiter of fact and credibility in UC
proceedings[,]” UCBR Br. at 9, the UCBR may not capriciously disregard record evidence. This
Court has explained:
               An adjudication cannot be in accordance with the law if it is not
               decided on the basis of law and facts properly adduced; therefore,
               appellate review for the capricious disregard of material, competent
               evidence is an appropriate component of appellate consideration if
               such disregard is properly before the reviewing court. When
                                                  5
              With respect to Claimant’s internet use, the UCBR concluded that
Employer failed to meet its burden of demonstrating Claimant’s willful misconduct,
reasoning that the Reports did not establish that Claimant was using the internet while
on work time and not for work purposes, because Employer did not distinguish
between sites Claimant actually accessed and embedded advertisements that
registered as attempted site access. However, Claimant admitted that he was aware
of the ECM Policy and that the ECM Policy provided for disciplinary action up to
and including employment termination. See R.R. at 61a. Claimant acknowledged
that he used the internet for personal reasons, see R.R. at 62a, and also admitted that
he used the internet while working “in-between orders or in slow periods, I would
check out news – the news or I would log on to a Pharmacist letter and do [continuing
education] credits.” R.R. at 20a.
              Moreover, Employer presented evidence that, on August 10, 2017,
Claimant was placed in an Action Plan to address his performance deficiencies which
included his internet use. See R.R. at 129a, 132a. Specifically, the Action Plan
stated, “[Claimant] has been noted to be using work computers, mobile phones, etc.
to surf the internet.” R.R. at 132a. With respect to Claimant’s internet use, the
Action Plan provided: “It is expected that [Employer’s] resources will be used
appropriately.”    R.R. at 132a.      Claimant admitted that, at an August 17, 2017


              determining whether the [UCBR] capriciously disregarded the
              evidence, the Court must decide if the [UCBR] deliberately
              disregarded competent evidence that a person of ordinary intelligence
              could not conceivably have avoided in reaching a particular result[]
              or[,] stated another way, if the [UCBR] willfully or deliberately
              ignored evidence that any reasonable person would have considered
              to be important.
Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007)
(citation omitted). Here, the UCBR acted in the above-described manner when it disregarded
Employer’s evidence that Employer discharged Claimant for both his unauthorized internet use and
his repeated medication errors.
                                               6
meeting one week later, Employer discussed its concerns over Claimant’s internet
use. See R.R. at 62a; see also R.R. at 9a. At that meeting, Claimant signed the
Action Plan acknowledging that its contents had been discussed with him. See R.R.
at 130a. Despite Claimant’s awareness of Employer’s concerns over his internet use,
Claimant admitted that his personal internet use continued during work time. See
R.R. at 63a. In fact, Claimant acknowledged that the very next day, on August 18,
2017, he used the internet during work hours to search for jobs. See R.R. at 21a; see
also R.R. at 10a. Employer presented evidence that Claimant’s internet use on that
date occurred immediately before and after Claimant’s final medication error,
ultimately resulting in his employment termination. See R.R. at 10a, 56a.
            Despite Employer’s unambiguous ECM Policy limiting personal internet
use to non-work time, Claimant’s repeated admissions that he used the internet during
work time, even after Employer’s warnings, and Employer’s evidence establishing
such use, the UCBR concluded that Claimant had not engaged in willful misconduct,
reasoning: “While [Claimant] admitted to some occasional use of the internet, he
denied the extent alleged by [Employer]. Notably, [Claimant] explained that he only
used the internet when work was slow or [in] between orders.” Employer Br.,
App. E at 4 (emphasis added).
            This Court has recognized:

            ‘[I]t is contrary to reasonable standards of behavior for
            an employee to use company property for personal
            activities without authorization, even absent a rule
            prohibiting such conduct.’ Smith v. Unemployment Comp[.]
            [Bd.] of Review, . . . 508 A.2d 1281, 1283 ([Pa. Cmwlth.]
            1986)[.] . . . Using computers for personal, non-work
            purposes after being instructed not to do so amounts to
            willful misconduct, Baldauf v. Unemployment Comp[.]
            [Bd.] of Review, 854 A.2d 689 (Pa. Cmwlth. 2004), and a
            lack of prior warnings ‘is not a defense in willful
            misconduct cases’ regarding admitted misconduct. Placid


                                          7
               v. Unemployment Comp[.] B[d.] of Review, . . . 427 A.2d
               748, 750 ([Pa. Cmwlth.] 1981).

Pettyjohn v. Unemployment Comp. Bd. of Review, 863 A.2d 162, 165 (Pa. Cmwlth.
2004) (emphasis added).
               Here, Employer established the existence of the ECM Policy and its
reasons for the ECM Policy, and Claimant acknowledged his awareness thereof.5
Claimant also admitted to repeated conduct which violated the ECM Policy, and



       5
         The UCBR asserts that Employer’s work time internet prohibition is ambiguous because
the policy “does not appear to be a categorical ban on personal internet use at all times, and
Employer never explained through testimony what constituted ‘worktime’ or what level of use
would be tolerated under this policy.” UCBR Br. at 12-13. Notwithstanding, Claimant did not
assert that he was unclear as to what the policy meant, and he admitted that his internet use
included searching for jobs during a “slow period[.]” R.R. at 21a. Even after Employer warned
him about his internet use during work hours, he claimed he continued to engage in personal
internet activity because he “noticed that everybody else on the nightshift was using it.” R.R. at
63a. Specifically, on August 18, 2017, both before and after he made a medication error, he was
engaged in personal internet activity while a patient failed to get his/her prescribed medication. See
R.R. at 56a.
        The UCBR notes that Employer referenced Claimant’s internet use as excessive, implying
that Employer permitted some work time internet use. Relying on Great Valley Publishing v.
Unemployment Compensation Board of Review, 136 A.3d 532 (Pa. Cmwlth. 2016), the UCBR
proclaims that “[w]hen an employer discharges a claimant for conduct that is categorized as
‘excessive’ or ‘egregious,’ it must establish to what magnitude it will no longer accept such
conduct, particularly when faced with evidence of past, similar and permitted acts.” UCBR Br. at
14-15. However, the UCBR mischaracterizes the Great Valley holding. Great Valley is inapposite
to the instant matter. Therein,
               [the e]mployer acknowledged that it tolerated [the] employees’
               violation of the computer/internet policy so long as their use was not
               excessive; [the e]mployer’s policy did not define ‘excessive’ or
               differentiate between permissive and excessive computer usage; and
               [the c]laimant credibly testified that she believed her minimal usage
               was permissible under the policy as [the e]mployer enforced it.
Great Valley, 136 A.3d at 538-39.
       In the instant matter, there is no evidence that Claimant was ever advised that he was
permitted to use the internet during work time, but only that he could engage in “[o]ccasional,
limited personal use during non-work time[,]” in accordance with the ECM Policy. R.R at 76a
(emphasis added).
                                                  8
presented no justification for doing so.6 The UCBR’s statement that Claimant “only
used the internet when work was slow or [in] between orders” necessarily
acknowledges that Claimant used the internet for personal reasons during work
time. Employer Br., App. E at 4 (emphasis added). Thus, Claimant engaged in
willful misconduct. See Sipps. Even absent the ECM Policy, pursuant to Pettyjohn,
the record evidence unequivocally demonstrates Claimant engaged in willful
misconduct by “[u]sing computers for personal, non-work purposes [during work
time] after being instructed not to do so. . . .” Id. at 165. Accordingly, the UCBR’s
legal conclusion that Claimant had not engaged in willful misconduct is inconsistent
with Sipps and Pettyjohn, and, therefore, the UCBR erred when it concluded that
Claimant was eligible for benefits.7
               For all of the above reasons, the UCBR’s order is reversed.


                                              ___________________________
                                              ANNE E. COVEY, Judge




       6
          Claimant argued that Employer was aware that other employees similarly used the internet;
however, he offered no evidence of such, apart from his general conclusory testimony that
Employer was aware of the use. Notably, when asked why he did not approach Employer and ask
why he was being singled out rather than just continuing to violate the ECM Policy, Claimant
responded: “For no good reason.” R.R. at 63a.
        7
          Having found that Claimant engaged in willful misconduct through his unauthorized
internet use, this Court need not address whether Claimant’s repeated medication errors constituted
willful misconduct. Notwithstanding, even if this Court had not held that Claimant’s internet use
constituted willful misconduct, it would hold that the UCBR erred because Employer clearly
expressed to Claimant and the Referee that Claimant was also discharged for his repeated
medication errors, and offered voluminous evidence and testimony in support thereof.
Notwithstanding, the Referee and the UCBR failed to consider and address whether Claimant’s
“failure to work up to his . . . full, proven ability, especially after multiple warnings regarding poor
work performance . . . demonstrate[d] an intentional disregard of the employer’s interest or the
employee’s obligations and duties” and, accordingly, constitutes willful misconduct. Scott, 36 A.3d
at 648. This was error.
                                                   9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pinnacle Health Hospitals,              :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 1277 C.D. 2019
                    Respondent          :


                                      ORDER

            AND NOW, this 5th day of June, 2020, the Unemployment
Compensation Board of Review’s August 20, 2019 order is reversed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
