         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philly Service Center,                 :
                   Petitioner          :
                                       :
               v.                      : No. 487 C.D. 2016
                                       : SUBMITTED: September 2, 2016
Unemployment Compensation              :
Board of Review,                       :
                 Respondent            :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                        FILED: October 31, 2016

               Philly Service Center (Employer) petitions for review of an order of
the Unemployment Compensation Board of Review (Board), affirming a referee’s
grant of unemployment compensation benefits to Wayne Dillard (Claimant). The
grant was based on the Board’s determination that Employer failed to prove that
Claimant engaged in willful misconduct during the incident which led to his
termination.
               Claimant was employed by Employer as a full-time service technician
from November 2014 until August 21, 2015. Claimant then was fired following an
incident on August 21, 2015 when a wheel assembly bolt installed by the Claimant
failed during a test drive of a vehicle, causing extensive damages. Thereafter,
Claimant applied for benefits under the Unemployment Compensation Law1 (Law)
on October 4, 2015. After reviewing Claimant’s application, the Pennsylvania
Department of Labor and Industry’s Office of Unemployment Compensation
Benefits determined that he was ineligible for benefits due to willful misconduct.
Claimant appealed that determination, and on November 23, 2015, a referee
conducted a hearing on Claimant’s appeal. Both Claimant and a representative of
Employer appeared and testified at the hearing.
                 Claimant testified that on August 21, 2015, he performed work on a
vehicle, which included the installation of a bolt on the vehicle.              (Notes of
Testimony (N.T.) at 7). After Claimant installed the bolt to the best of his abilities,
a supervisor visually inspected the bolt and signed off on the installation. (N.T. at
7-8).       Thereafter, the vehicle was test-driven, and during the test the bolt failed,
breaking into pieces. (N.T. at 7).
                 Based on the testimony, the referee determined that Claimant’s
performance with respect to the installation of the bolt did not constitute willful
misconduct.         The referee concluded that Claimant was not ineligible for
compensation benefits under Section 402(e) of the Law.
                 Employer appealed the referee’s decision to the Board. On February
18, 2016, the Board affirmed the referee’s decision that Claimant was eligible for
benefits, noting that the Employer offered no evidence that the bolt came off the
car due to Claimant’s actions. In its decision, the Board made the following
findings of fact:



        1
        Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751-918.10.


                                              2
            1. The claimant was employed as a full-time service technician
               from November 2014, until August 21, 2015. . . .

            2. The claimant was or should have been aware that the
               employer had a policy requiring employees to meet certain
               safety standards and providing that employees who violate
               those safety standards could be subject to discipline up to
               and including discharge.

            3. The claimant was verbally warned about his work by the
               employer.

            4. As a result, the employer assigned a supervisor to visually
               inspect the claimant’s work.

            5. On August 21, 2015, the claimant was working on a vehicle
               and one of his jobs was to install a bolt.

            6. The claimant finished the job to the best of his abilities and
               his supervisor visually inspected the vehicle to make sure
               the claimant had installed all the parts that he was supposed
               to.

            7. The supervisor signed off on the claimant’s work and the car
               was taken on a road test, when the car was coming back
               from the road test a wheel came off because the bolt that the
               claimant had installed broke off.

            8. The bolt that had broken off was later found in pieces.

            9. The employer discharged the claimant for failing to meet its
               safety standards.

(Certified Record (C.R.) Item No. 14). The Board determined “the claimant did
not commit willful misconduct” and was thus eligible for benefits. (C.R. Item No.
14).




                                        3
              Employer now seeks review of the Board’s determination.2
Employer’s sole issue on appeal is whether the Board erred in determining that
Claimant did not engage in willful misconduct.
              “Substantial evidence must be something more than a scintilla
creating a mere suspicion of the existence of the fact, and must be such relevant
evidence as a reasonable mind might consider adequate to support a conclusion.”
Barnes v. Commonwealth Dep’t of Justice, 452 A.2d 593, 595 (Pa. Cmwlth. 1982).
“In determining whether substantial evidence exists to support the Board’s
findings, we must examine the testimony in the light most favorable to the
prevailing party below, giving that party the benefit of any inference which can be
drawn logically and reasonably from the evidence.” Johnson v. Unemployment
Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986) (citing Dickey v.
Unemployment Comp. Bd. of Review, 466 A.2d 1106 (Pa. Cmwlth. 1983)). An
employer seeking to prove willful misconduct by showing that a claimant violated
the employer’s rules or practices must prove (1) the existence of the rule or policy;
(2) a violation of the rule or policy by the claimant; and (3) that the employee’s
actions were intentional or deliberate. Henderson v. Unemployment Comp. Bd. of
Review, 77 A.3d 699, 718-19 (Pa. Cmwlth. 2013). In cases arising under section
402(e), Employer has the burden of proving willful misconduct on the part of the
Claimant. Frumento v. Unemployment Comp. Bd. of Review, 351 A.2d 631 (Pa.
1976).     “[A]n inadvertent violation of an employer’s rule may not constitute



       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Kirkwood v. Unemployment Comp. Bd. of Review, 525 A.2d
841, 843-44 (Pa. Cmwlth. 1987).


                                               4
willful misconduct.”     Henderson, 77 A.3d at 719 (quoting Eshbach v.
Unemployment Comp. Bd. of Review, 855 A.2d 943, 947 (Pa. Cmwlth. 2004)).
            Employer argues the Board’s conclusions were factually incorrect. In
support of this contention, Employer contends that because Claimant failed to meet
Employer’s safety standards, Claimant must have engaged in willful misconduct.
However, Employer has neither shown a clear violation of the rule by the Claimant
on August 21, 2015, nor has it shown that any such violation was intentional or
deliberate. The Board found that Employer “offered no direct competent evidence
that the claimant improperly installed the bolt,” and “[did] not find that the
employer offered even circumstantial evidence that the bolt came off due to the
claimant’s actions and its arguments to the contrary are mere speculation.” (C.R.
Item No. 14).
            Only a deliberate refusal to follow an employer’s directive – not
genuine incompetence or inexperience - constitutes willful misconduct under the
Law. Herndon v. Unemployment Comp. Bd. of Review, 540 A.2d 633, 634 (Pa.
Cmwlth. 1988). The Board, after weighing all of the evidence before it, found that
although Employer had effectively demonstrated that a rule was in place,
Employer had not proven that the rule had been violated deliberately by Claimant.
“[A]n inadvertent violation of an employer’s rule may not constitute willful
misconduct.” Henderson, 77 A.3d at 719. Here, we should first note that the
Board found no evidence that Claimant was responsible for the broken bolt and
subsequent damage to the vehicle. And, the Board found that even if Claimant’s
conduct had been the cause of the damage, the Board found no evidence that such
conduct by Claimant was willful. Willful misconduct under the Law is only
created when an employee intentionally refuses to follow an employer’s


                                        5
instructions; it is not created when an employee errs due to a genuine mistake. See
Herndon, 540 A.2d at 634.       Employers have the burden of proving willful
misconduct by claimants in cases arising under Section 402(e). Frumento, 351
A.2d at 631. In this case, the Board found that Employer failed to meet that
burden.
            The Board determined that Employer failed to prove that Claimant
engaged in willful misconduct because Employer failed to offer any direct or
circumstantial evidence that Claimant installed the bolt improperly or that
Claimant’s actions caused the bolt to fail. Moreover, the Board also concluded the
evidence failed to establish that any purported misconduct by the Claimant was
deliberate or intentional. Despite Employer’s contrary contentions, we are bound
to examine the evidence and testimony presented to the Board in the light most
favorable to Claimant, giving Claimant the benefit of any logical or reasonable
inference that can be drawn from the evidence. Henderson, 77 A.3d at 718. In this
case, we find that the Board properly applied the law and its conclusions were
supported by substantial evidence. The Board did not err in determining that
Claimant was not ineligible for benefits under Section 402(e) of the Law.
            For this reason, we affirm.


                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                          6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Philly Service Center,           :
                   Petitioner    :
                                 :
            v.                   : No. 487 C.D. 2016
                                 :
Unemployment Compensation        :
Board of Review,                 :
                 Respondent      :



                                ORDER


            AND NOW, this 31st day of October, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                 __________________________________
                                 JULIA K. HEARTHWAY, Judge
