               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael E. Dzikowski,                             :
                 Petitioner                       :
                                                  :
                  v.                              :
                                                  :
Unemployment Compensation                         :
Board of Review,                                  :   No. 1745 C.D. 2016
                 Respondent                       :   Submitted: May 5, 2017


BEFORE:           HONORABLE MARY HANNAH LEAVITT, President Judge
                  HONORABLE PATRICIA A. McCULLOUGH, Judge
                  HONORABLE JOSEPH M. COSGROVE, Judge1


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                     FILED: January 5, 2018


                  Michael E. Dzikowski (Claimant) petitions for review of a decision of
the Unemployment Compensation Board of Review (Board) that reversed the
decision of a referee and denied him unemployment compensation (UC) benefits.
The Board found Claimant ineligible for UC benefits pursuant to Section 402(e)2 of
the Unemployment Compensation Law (Law) (relating to willful misconduct)
because he did not credibly establish good cause for his actions in falsifying spa and

         1
             This decision was reached before the conclusion of Judge Cosgrove's service with this
Court.

         2
         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 “[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[.]”
pool logs of Wyndham Hotel Management, Inc. (Employer). Claimant contends the
Board erred in reaching this determination. Upon review, we reverse.

                                     I. BACKGROUND

               Employer employed Claimant from November 1, 2010, through May
18, 2016, 3 finally as a full-time stationery engineer earning $31.12 per hour.
Claimant’s position required him to complete spa and pool logs. On May 5, 2016,
Claimant falsified spa and pool logs and Employer discharged Claimant. (Bd. Op.
9/23/16, Findings of Fact (F.F.) Nos. 1-4.)
               On May 25, 2016, Claimant applied for UC benefits.                     Based on
information from Claimant explaining his reasons for falsification of records and
documented in the Internet Initial Claim and Records of Oral Interview (Reproduced
Record (R.R.) at 33a-41a) the local service center determined Claimant ineligible
for benefits. Claimant appealed, and a referee held a hearing.
               Employer did not appear at the referee’s hearing. Claimant appeared
and testified.    At the beginning of the hearing, the referee identified the file
documents, most of which were admitted without objection. Those to which
Claimant objected (for failure to authenticate) were not admitted into evidence.4
(R.R. at 16a-19a.)
               When asked at the hearing what Claimant’s position was as to why he
was no longer employed, he responded he was discharged “for not filling out the


       3
        Referee’s Op., 7/27/16, Finding of Fact (F.F.) No. 1 erroneously lists Claimant’s last day
of work as May 28, 2016. See Internet Initial Claim, 5/25/16, No. 3.

       4
        Documents admitted into evidence include the Internet Initial Claims Application,
Records of Oral Interview, Spa Chemical Log, Employer Questionnaire, and Acknowledgement
of Employee Handbook. See (R.R. at 16a-19a.)


                                                2
pool records.” Id. at 23a. Claimant testified this was the first time he was accused
of not completing pool and spa records. He testified he did not falsify any records
and did not “doctor” any records. Id. at 25a. Claimant further testified that he
believed he filled out the spa and pool document accurately and to the best of his
knowledge. Id. at 25a-26a.
                When questioned, Claimant testified he never lied to Employer. He
testified he was “completely honest…the whole time”5 and when Employer asked
him if he went to the pool, he told them he did not, but that the information on the
pool and spa log was accurate and completed in good faith. Id.
                The referee determined that because Employer failed to participate in
the hearing to establish that Claimant falsified any company documents, there was
insufficient evidence to establish a finding of willful misconduct. Consequently, the
referee reversed the determination of the service center and determined that a denial
of benefits was not warranted under Section 402(e) of the Law. Id. at 10a.
                Employer appealed to the Board. The Board found that Claimant’s
position required him to complete spa and pool logs. The Board also found that on
May 15, 2016, Claimant falsified those logs and Employer discharged Claimant for
falsifying the logs. (Bd. Op., 9/23/16, F.F. Nos. 2-4.)
                The Board determined that because Claimant was discharged,
Employer bore the burden of establishing the discharge was for willful misconduct
in connection with his work under Section 402(e) of the Law. (Bd. Op. at 2.) The
Board found Claimant admitted Employer discharged him for falsifying spa and pool
logs, but determined that even absent a policy, a knowing falsification material to
one’s employment, is willful misconduct. Ultimately, the Board held that because


      5
          (R.R. at 26a.)


                                           3
Claimant admitted to falsifying spa and pool logs, which was a material job function,
Claimant did not establish good cause for his actions. Id. Thus, the Board concluded
Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant now
petitions for review of the Board’s order denying him benefits.

                                       II. ISSUES

             On appeal, 6 Claimant argues the Board committed an error of law
because its findings were not supported by substantial evidence; the Board
incorrectly assigned the burden of proof to Claimant and concluded Claimant
engaged in willful misconduct.


                                  III. DISCUSSION

             Claimant argues the Board committed an error of law because its factual
findings were not supported by substantial evidence. Citing Vockie v. General
Motors Corp., Chevrolet Div., 66 F.R.D. 57, 61 (E.D. Pa. 1975) (“[a]n admission is
a voluntary acknowledgement made by a party of the existence of the truth of certain
facts which are inconsistent with his claims in an action”), Claimant contends the
record does not contain an admission by him that he falsified spa and pool logs.
Rather, Claimant asserts the Board’s finding is solely supported by negative
evidence. Claimant identifies that the Pennsylvania Supreme Court has held that
negative evidence cannot support a positive factual finding. Kyu Son Yi, DVM v.
State Board of Veterinary Medicine., 960 A.2d 864 (Pa. Cmwlth. 2008) citing

      6
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Oliver v. Unemployment Compensation Board of Review, 5
A.3d 432 (Pa. Cmwlth. 2010) (en banc).


                                            4
Pennsylvania State Board of Medical Education & Licensure v. Schireson, 61 A.2d
343 (Pa. 1948).       Consequently, Claimant asserts “[a]n adverse credibility
determination is not itself substantial evidence,” Aversa v. Unemployment
Compensation Board of Review, 52 A.3d 565, 571 (Pa. Cmwlth. 2012) and will not
support a determination of willful misconduct.
             Willful misconduct is defined by the courts as: (1) wanton and willful
disregard of an employer's interests; (2) deliberate violation of rules; (3) disregard
of the standards of behavior which an employer can rightfully expect from an
employee; or, (4) negligence showing an intentional disregard of the employer's
interests or the employee's duties and obligations.         Grieb v. Unemployment
Compensation Board of Review, 827 A.2d 422 (Pa. 2002). The employer bears the
initial burden of proving a claimant engaged in willful misconduct. Ductmate
Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338 (Pa.
Cmwlth. 2008); Grieb. When asserting a discharge based on a violation of a work
rule, an employer must establish the existence of the rule, the reasonableness of the
rule, the claimant's knowledge of the rule, and its violation. Id. Whether a claimant's
actions constitute willful misconduct is a question of law fully reviewable on appeal.
Id.
             Instantly, the Board found Claimant ineligible for benefits as it
determined Claimant to have committed willful misconduct. While the Board
correctly lays out our four-part, court-created definition for acts which rise to the
level of willful misconduct, the Board fails to identify which part of the definition
Claimant’s actions fall under. The Board cites only Claimant’s discharge for
admittedly falsifying spa and pool logs, baldly stating “a knowing falsification [of]
material to one’s employment is willful misconduct” as Claimant “has not credibly



                                          5
established good cause for his actions.” (Bd. Op. at 2.) We are therefore left to
examine Claimant’s actions against the four-part definition provided ourselves.

             A. Wanton and Willful Disregard of An Employer's Interests

            Here, Claimant conducted the water tests in the same manner since the
pool opened and since he assumed this position with Employer.

            CL [Steven Winslow, Esq.] Did you have to go up to the pool
            to take those measurements?

            C I was never told that I had to go up there. You kind of just
            wing it.
            …

            CL And were you able to take the measurements without going
            up to the pool?
            C The water measurements?

            CL The sample? The tests? To do the testing you have to do?
            Were you able to do that?
            C No. Yes, yes. Oh, yes. From the samples…yes. I’m sorry.
            Yes, the water samples come from the cups that I took. Yes, I’m
            sorry.
            CL Just to be clear on that, how did you take the tests?

            C Based on the two pool and spa samples that were left on the
            (inaudible).

            CL And what do you do to take the tests?

            C You take a – two samples and you mix it up with chemicals
            from a little sample that’s left on (inaudible)

            CL Is that test that’s something that you had to go up the pool to
            get or was it done there?


                                         6
             C No, it’s always left on the desk.

Referee’s Hr’g, Notes of Testimony (N.T.), 7/15/16 at 15. (Emphasis added.)

             We cannot see how Claimant’s action constituted a wanton and willful
disregard of Employer’s interests as Claimant attempted to complete his duty in line
with common practice.

                        B. Deliberate Violation of Employer’s Rules

             Claimant tested the water samples left for him by the employee on the
previous shift. Id.

             CL How are the pool and spa forms completed normally? Are
             they – how do people handle them?
             C It’s kind of haphazard. It’s – sometime it’s done. Sometimes
             it’s not done. It’s – they lay on the desk for days sometimes, and
             they don’t provide a heat gun to check the temperatures. It’s –
             you kind of just jot down what you got to jot down.

             CL Are you aware of any other employee who’s been terminated
             relative to not completing those forms properly?

             C No, I’m not.
             …

             R [Referee] So, part of your job duties were to complete these
             forms for the pool?
             C Yes.

             R And, in completing these forms, had you done it the same way
             for the last five years?
             C Not really. You go days without completing them.




                                          7
             R Okay. But when you did complete them you’ve been doing it
             since you’ve taken the position? Is that correct?

             C Yes. Yes.

             R In the same manner?

             C For about the last two years. The pool just opened about two
             years ago.

             R Okay. So for as – since the pool opened?
             C Yes.

             R You haven’t changed the way you filled out the forms?
             C No, I have not.

             R Okay, So, you – you already testified you did not falsify these,
             and you made no qualms about telling the Employer I never went
             to the pool; I never said I went to the pool?
             C No, I did not. I was totally honest with them the whole time.

Referee’s Hr’g, N.T., 7/15/16 at 13-14. (Emphasis added.)

             Here, there was no deliberate violation of rules where rules were not
specifically laid out; where there was no common enforcement; and where it was
common practice to complete the spa and pool logs as others did and without
repercussion to them from Employer.

          C. Disregard of the Standards of Behavior Which an Employer Can
                             Rightfully Expect from an Employee

             Claimant spoke with management of Employer about receiving training
on pool and spa readings for the logs, but was told it would “get back to him.” Record
of Oral Interview, 6/14/16 at 1. When Claimant reached out to Employer again and


                                          8
asked for training, it would “just give me the run around.” Id. When questioned as
to why Claimant didn’t ask other employees who had training for assistance in
showing him how to properly conduct the pool and spa readings, Claimant stated:
“I did. Everybody was kind of vague. I don’t know how many times [a fellow
employee] told me that the directions were on the back of the box. But just because
you read something doesn’t mean you necessarily know what you’re doing.” Id.
When further questioned, Claimant responded, “the only thing I can say to that is
no, I was never trained.” Id. at 2.
              It is evident from the testimony that the common practice of employees
of Employer clearly established a standard of behavior and practice which Claimant
followed. Employer cannot expect an employee to comply with standards which are
not set by example or training.

            D. Negligence Showing an Intentional Disregard of the Employer's
                      Interests or the Employee's Duties and Obligations

             Claimant was questioned at the hearing as to Employer’s policy and
training:

             Q [UC Office Representative]: The Employer states that you did
             not have permission to use samples that were provided by
             someone else and that it is policy is [sic] to take your own
             samples on every shift.

             A [Claimant]: I was unaware of that policy and it is a common
             practice. It is not done every day but it is something that is done
             multiple times a month.

Id.




                                          9
                 Here, Claimant did test the pool and spa water and kept a log. Claimant
followed his obligations just as that obligation was expected of other employees,
particularly where no specific training was provided; and Claimant followed what
was common practice for this job duty. There can be no negligence showing an
intentional disregard of the employer's interests or the employee's duties and
obligations where, as here, Claimant repeatedly requested training, a request which
here, was ignored by both Employer and other employees. Further, the assurances
by Employer's staff that Claimant was, indeed, told to “put down what [the pool and
spa] readings should be, not what they are, [as] it will only help you guys in the long
run”7 offers little comfort to Claimant who was begging for training, which was not
provided, and certainly does not negate the "reasonableness" of his position.
                 Although duly notified, Employer did not attend the hearing.
(Referee’s Op. 7/27/16 at 2.) Employer offered no testimony or competent evidence
that Claimant knew about or was on notice of the work rule in issue. Moreover, no
such rule appears in the simple one-page acknowledgement of employee handbook
in the record. (R.R. at 53a.)8
                  Whether a claimant has good cause to violate an employer's rule or
policy is a question of law subject to this Court's review and should be viewed in
light of all of the attendant circumstances.                  Docherty v. Unemployment
Compensation Board of Review, 898 A.2d 1205, 1208 (Pa. Cmwlth. 2006); see also
Dunkle v. Unemployment Compensation Board of Review, 496 A.2d 880 (Pa.

       7
           Internet Initial Claim, 5/25/15 at 2.

       8
         Claimant also alleges that his termination by Employer was retaliation for participation
as a witness in a National Labor Relations Board (NLRB) proceeding involving Employer and
another former employee. (See R.R. 21a-29a; 58a-75a.) Consequently, on May 31, 2016,
Claimant filed an NLRB retaliation proceeding of his own against Employer for his termination.
(R.R. 70a-71a.)


                                                   10
Cmwlth. 1985). A claimant has good cause if his or her actions are justifiable and
reasonable under the circumstances. Frumento v. Unemployment Compensation
Board of Review, 351 A.2d 631 (Pa. 1976).

                                 IV. Conclusion

             Employer did not attend the hearing, nor present testimony to show, let
alone prove willful misconduct on the part of Claimant. Claimant had good cause
for his actions and were justifiable and reasonable given the totality of the
circumstances. We therefore conclude the Board erred in determining Claimant was
ineligible for benefits under Section 402(e) of the Law.
             Accordingly, we reverse the Board’s order.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael E. Dzikowski,             :
                 Petitioner       :
                                  :
           v.                     :
                                  :
Unemployment Compensation         :
Board of Review,                  :   No. 1745 C.D. 2016
                 Respondent       :


                              ORDER


           AND NOW, this 5th day of January, 2018, the order of the
Unemployment Compensation Board of Review is hereby REVERSED.




                                ___________________________
                                JOSEPH M. COSGROVE, Judge
