           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Franklin County,                                 :
                                                 :
                        Petitioner               :
                                                 :
                 v.                              : No. 134 C.D. 2015
                                                 : Submitted: August 14, 2015
Unemployment Compensation                        :
Board of Review,                                 :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
                 HONORABLE ROBERT SIMPSON, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS2                                                FILED: May 13, 2016

                 Franklin County (Employer) petitions for review of the January 9,
2015 order of the Unemployment Compensation Board of Review (Board)
concluding that Bruce Puchalski (Claimant) was not ineligible for unemployment
compensation benefits under Section 402(e) of the Unemployment Compensation
Law3 (Law) due to willful misconduct because Claimant demonstrated good cause
for his violation of Employer’s policy. We affirm.

1
  This case was submitted on or before January 31, 2016, when Judge Leadbetter assumed the
status of senior judge.

2
    This opinion was reassigned to the opinion writer on March 15, 2016.

3
  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 compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
             Claimant   filed   an   initial   internet     claim for   unemployment
compensation on July 10, 2014 and stated on the accompanying separation
questionnaire that he was discharged for violating Employer’s rule against personal
contact.   (R. Item 2, Initial Internet Claim.)      Employer submitted separation
information to the Department of Labor and Industry (Department), including a
letter addressed to Claimant in which Employer described the incident leading to
Claimant’s discharge, its investigation of that incident, and the rules or policies
Claimant’s conduct allegedly violated.          (R. Item 3, Employer Separation
Information.) On July 31, 2014, the Department conducted an oral interview with
Claimant in order to provide Claimant the opportunity to rebut Employer’s
assertion that Claimant violated its policy regarding an employee’s behavior
towards inmates and members of the public.                (R. Item 5, Record of Oral
Interview.) On August 1, 2014, the Department issued a Notice of Determination
finding that Employer had met its burden under the Law and Claimant was
ineligible for unemployment benefits due to willful misconduct. (R. Item 6, Notice
of Determination.)   Claimant appealed the Department’s determination to the
Referee. (R. Item 7, Claimant’s Petition for Appeal.) Claimant also requested and
received a subpoena for a copy of the surveillance video documenting the incident
for which Claimant’s employment was terminated and for a copy of Claimant’s
personnel file. (R. Item 10, Correspondence; R. Item 12, Subpoena.)
             A hearing was held before the Referee on September 29, 2014. (R.
Item 13, Hearing Transcript (H.T.).) Claimant, represented by counsel, testified on
his own behalf. (R. Item 13, H.T. at 1.) Employer presented the testimony of:
Lieutenant Greg Snodgrass, Carrie Aaron (regarding Claimant’s employment



                                          2
history), and Warden Dan Keen.4 (Id. at 1-2.) Prior to receiving testimony, the
Referee entered documents previously submitted to and generated by the
Department into the record without objection. (Id. at 5.) At this time, Claimant
raised the fact that Employer failed to provide Claimant a copy of the subpoenaed
video surveillance and Claimant’s personnel file prior to the hearing.                    (Id.)
Employer informed the Referee that it had brought both the surveillance video and
Claimant’s personnel file to the hearing in compliance with the subpoena, which
specified that Employer was to bring the requested material to the hearing but did
not specifically require Employer to provide the material to Claimant prior to the
hearing. (Id.; R. Item 12, Subpoena.) At the close of the hearing, Claimant
requested that Employer be prohibited from arguing that Claimant wasn’t
threatened because the surveillance video was not produced prior to or at the
hearing in response to Claimant’s request and Claimant was denied the opportunity
to offer it as proof that Claimant was threatened. (R. Item 13, H.T. at 29-30.) The
Referee stated that Employer “has not entered it into the record at this time, there’s
been no testimony to the video so I need to make it from the credibility of the
circumstances,” and closed the record. (Id. at 30.) On October 27, 2014, the
Referee issued a decision and order finding Claimant ineligible to receive
unemployment compensation due to willful misconduct. (R. Item 14, Referee’s
Decision and Order.) Claimant petitioned the Board for review of the Referee’s
decision and order. (R. Item 15, Claimant’s Petition for Review.)




4
  Captain James Sullen and Charles Martin, Employer’s Human Resources representative, also
appeared at the hearing to offer testimony for Employer but Employer determined that their
testimony would be repetitive and chose not to offer it into the record. (R. Item 13, H.T. at 2,
22.)
                                               3
             On January 9, 2015, the Board issued a decision and order reversing
the Referee and concluding that Claimant was not disqualified from receiving
unemployment compensation benefits due to conduct amounting to willful
misconduct under the Law. In its decision, the Board made the following findings
of fact:


       1. [Claimant] was last employed as a full-time corrections officer by
       [Employer] from mid-summer of 2012, at a final rate of $14.37 an
       hour and his last day of work was July 10, 2014.

       2. [Employer] has Standard of Conduct Policy, of which [Claimant]
       was aware, that requires employees to be courteous and discrete to
       members of the public, inmates and staff and to maintain proper
       decorum and command of temper and avoid the use of offensive,
       insolent, profane or obscene language.

       3. On June 23, 2014, [Claimant] noticed a visitor using a key to
       scratch the window sill.

       4. The visitor scratching the window sill was male and sixteen years
       of age.

       5. The minor visitor was visiting his mother, who was an inmate.

       6. [Claimant] removed the minor visitor from the visitation area.

       7. The minor visitor “squared up” to throw a punch at [Claimant]
       several times.

       8. The minor visitor informed the [Claimant] that he was going to
       “kick his a *s.”

       9. As [Claimant] was escorting the minor visitor, the minor visitor
       threatened to kill [Claimant] in the parking lot.



                                         4
     10. [Employer’s] lieutenant was summoned to the lobby by
     [Claimant].

     11. [Employer’s] lieutenant went upstairs to the visitation area with
     the minor visitor’s guardian, and [Claimant] was left behind.

     12. The minor visitor was outside the building.

     13. When the lieutenant came back from upstairs with the guardian,
     the minor visitor came back into the lobby, but was escorted out by
     the guardian.

     14. While inside the lobby, the minor visitor requested [Claimant]
     come out to the parking lot.

     15. While upstairs, the guardian stated that [Claimant] touched the
     minor visitor’s arm.

     16. The minor visitor came back into the lobby.

     17. The guardian and [Claimant] argued about what transpired.

     18. The guardian told [Claimant] that he touched the minor visitor’s
     arm.

     19. [Claimant] denied touching the minor’s visitor’s arm.

     20. [Claimant] told the guardian that he “should have dropped [his]
     son” when he threatened him.

     21. The lieutenant told [Claimant] that it was enough.

     22. [Claimant] was discharged for making threatening comments to
     the guardian about the minor visitor, in violation of the [Employer’s]
     policy.


(R. Item 19, Board Findings of Fact (F.F.) ¶¶1-22.) Based on its findings, the
Board concluded that “even though [Claimant] admitted to making the remark,

                                        5
[Claimant] credibly established that he was not the instigator of the confrontation.
Although the Board does not condone [Claimant] making the remark, the Board is
compelled to find that [Claimant] was provoked by the minor visitor and his
guardian.    Accordingly, [Claimant] has provided adequate justification for his
actions.” (Id., Discussion at 3.) Employer petitioned this Court for review of the
Board’s order.5
              In order to meet its burden to show that a claimant has committed
willful misconduct by violating a work rule or policy, an employer must
demonstrate the existence of the rule and the fact of the claimant’s violation.
Section 402(e) of the Law, 43 P.S. § 802(e); Chapman v. Unemployment
Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). There is
no dispute that Employer did so in the instant matter. Employer’s standard of
conduct requires its employees to be “courteous and discrete to members of the
public, inmates and staff and to maintain proper decorum and command of temper
and avoid the use of offensive, insolent, profane, or obscene language.” (R. Item
3, Employer Separation Information, Employer Standards of Conduct ¶L(m).)
Claimant violated Employer’s standard of conduct by telling the guardian of a
minor visitor that Claimant “should have dropped,” the guardian’s son when the
minor threatened Claimant. (R. Item 19, F.F. ¶18.)
              If an employer has met its burden by demonstrating the existence of a
work rule or policy and the fact of the claimant’s violation, the burden shifts to the
claimant to demonstrate the existence of good cause for the violation of employer’s

5
  In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
or whether necessary findings of facts are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. § 704; On Line Inc. v. Unemployment Compensation
Board of Review, 941 A.2d 786, 788 n.7 (Pa. Cmwlth. 2008).
                                               6
work rule. Chapman, 20 A.3d at 607. The question of whether a claimant has
demonstrated good cause—that the claimant’s actions were justified or reasonable
under the circumstances—is a question of law subject to this Court’s plenary
review. Rossi v. Unemployment Compensation Board of Review, 676 A.2d 194,
198 (Pa. 1996). In order to determine whether a claimant has met his or her burden
by demonstrating good cause, we must examine the claimant’s reason for
noncompliance in light of the totality of the circumstances surrounding the
claimant’s violation of employer’s work rule. Bell Socialization Services, Inc. v.
Unemployment Compensation Board of Review, 74 A.3d 1146, 1148 (Pa. Cmwlth.
2013). If a claimant has established good cause, the claimant will remain eligible
for unemployment compensation despite violating employer’s work rule because
the conduct for which claimant was discharged from employment does not amount
to willful misconduct under the Law. Frumento v. Unemployment Compensation
Board of Review, 351 A.2d 631, 634 (Pa. 1976).
             Before this Court, Employer argues that Claimant did not have good
cause for violating its standards of conduct and that the Board’s findings of fact are
not supported by substantial evidence. Employer also contends that the Board
capriciously disregarded the Referee’s findings, focusing on the Referee’s finding
that Claimant failed to remove himself from the situation to regain his composure.
(R. Item 14, Referee’s Decision and Order, F.F. ¶13.)
             Addressing Employer’s last argument first, we conclude that
substantial evidence supports the Board’s findings and the Board did not
capriciously disregard evidence when it made findings distinct from the Referee.
The Board is the ultimate finder of fact, empowered to determine credibility, and
weigh and resolve conflicts in the evidence. Peak v. Unemployment Compensation


                                          7
Board of Review, 501 A.2d 1383, 1388 (Pa. 1985). However, the Board may not
“deliberately disregard[] competent evidence that a person of ordinary intelligence
could not conceivably have avoided in reaching a particular result.” Henderson v.
Unemployment Compensation Board of Review, 77 A.3d 699, 711 n.5 (Pa.
Cmwlth. 2013).
               In the instant matter, the Board made several findings concerning the
minor visitor’s behavior, including: “[t]he minor visitor ‘squared up’ to throw a
punch at [Claimant] several times” and “[t]he minor visitor informed the claimant
that he was going to “kick his a *s.” (R. Item 19, F.F. ¶¶7-9.) The Referee’s
decision did not include similar findings. (See R. Item 14, Referee’s Decision and
Order.) However, the Referee’s failure to make findings concerning the minor
visitor’s conduct towards Claimant is not the same as a lack of evidence in the
record concerning the minor visitor’s conduct.                 Rather, each of the Board’s
findings concerning the minor visitor’s conduct is supported by Claimant’s
testimony and the contemporaneous report Claimant submitted at the time of the
incident. (R. Item 13, H.T. at 10, 23 & Ex. E1.) Similarly, Employer repeatedly
stresses the fact that the visitor was a minor and contends that the Board failed to
weigh this fact in evaluating whether or not Claimant’s actions were provoked.
Yet, it is clear from both Lieutenant Snodgrass’ testimony and Claimant’s
testimony that the age of the visitor was discovered only after the visitor had
threatened Claimant and been escorted out of the building.6 (Id., H.T. at 11, 22-23;
see also R. Item 14, Referee’s F.F. ¶5 (“[Claimant] discovered a male, who it was
later discovered was a juvenile[,] was damaging caulking around the visitation

6
  Claimant testified that “[w]hen I first met the individual he was sitting down. I could see facial
hair….Once he stood up I would say he was maybe about five seven, five eight. He was shorter
than me.” (R. Item 13, H.T. at 22-23.)
                                                 8
window.”).)    Regardless, the provocation that led to Claimant’s violation of
Employer’s work rule was not simply the minor’s behavior, but included the
guardian’s accusation that Claimant had grabbed the minor visitor, which was
uttered after the minor visitor had been led out of the building by his guardian and
the guardian returned to confront Claimant. (R. Item 19, F.F. ¶¶17-21; R. Item 13,
H.T. at 16, 23.)
              Employer also argues that the Referee’s findings that Claimant “did
not advise his supervisor that he had been threatened or felt he was in danger,” and
“did not leave the area to avoid the situation,” should be determinative of whether
Claimant had good cause for his violation of the standards of conduct and are facts
that were deliberately disregarded by the Board. (R. Item 14, Referee’s F.F. ¶¶10,
13.) However, this is not an instance of the Board capriciously disregarding
evidence; instead, the Board simply weighed the evidence differently than the
Referee and it is the Board rather than the Referee that is the ultimate finder of
fact.
              Claimant testified that he believed summoning assistance to the
visiting room while the minor visitor was threatening and arguing with him would
escalate the situation and that “until he got calmed down I really didn’t have an
opportunity to pull out my radio and call for help without making the situation
even worse,” which was Claimant’s explanation for why, as he was walking the
minor visitor down to the lobby, he requested that Lieutenant Snodgrass meet them
there instead of calling for assistance in the visitor’s room. (R. Item 13, H.T. at
24.) Both Claimant and Lieutenant Snodgrass testified that when they met in the
lobby, Claimant asked for the police to be called and Lieutenant Snodgrass
overruled him. (R. Item 13, H.T. at 16, 24.) Similarly, the testimony of both


                                         9
Lieutenant Snodgrass and Claimant casts doubt on Employer’s argument and the
Referee’s finding that Claimant should have left the area to avoid the situation.
Prior to Claimant’s untoward statement to the guardian, the minor visitor had been
escorted out of the building, Lieutenant Snodgrass went with the guardian to the
visiting room to hear the guardian’s version of events, and Claimant was waiting to
give his report to Lieutenant Snodgrass. (R. Item 13, H.T. at 9-12, 15-16, 23, 25,
27-28.) Lieutenant Snodgrass specifically testified:


      When I got there [Claimant] started explaining to me what had
      happened, and the father was coming off of the elevator. And I
      walked upstairs with the father to try—or it wasn’t the father, he was
      the guardian, but he referred to him as his son. And I went with him
      and I asked [Claimant] to stay in the lobby while I talked to him
      because I was, there was obviously a lot of tension between them and
      I was trying to figure out what had happened since I came in new on
      it. I went up with him; he explained to me what had happened
      upstairs. Then we came downstairs and walked out [and] the boy
      came walking back into the lobby. The guardian went directly to the
      boy and took him straight out front, and then came back in and that’s
      when this conversation went on.


(Id. at 9-10 (emphasis added).) It was only after Lieutenant Snodgrass returned to
the lobby with the guardian, the minor visitor attempted to reenter the building and
was escorted out by the guardian, and the guardian returned to confront Claimant
as he was reporting to Lieutenant Snodgrass that the situation escalated and
Claimant violated Employer’s work rule. (Id.) These events transpired quickly
and are open to multiple interpretations. The Referee determined that Claimant’s
failure to leave the lobby escalated the situation. The Board did not place equal
weight on this fact. Moreover, the testimony from Employer’s witness shows that
Claimant had reason to believe he was directed to wait in the lobby in order to
                                        10
report to his superior his version of the events that had transpired. Regardless of
how Employer, Claimant, the Referee, or this Court would weigh the evidence and
which narrative each would endorse, it is the Board that determines the weight
afforded the evidence and who is charged with the duty of being the final factual
arbiter. In the instant matter, the Board did not capriciously disregard evidence;
instead, the Board weighed the evidence, resolved conflicts within the evidence,
and determined the credibility of the witnesses before it. The Board’s findings are
supported by substantial, competent evidence and they are binding on appeal.
            The question of whether a claimant is eligible to receive
unemployment compensation benefits is legally distinct from whether an employer
was justified in discharging one of its employees. The propriety of an employer’s
personnel decision is beyond the scope of the Board and this Court when
determining eligibility for benefits under the Law. Instead, our focus is on whether
the circumstances surrounding the employee’s discharge are such that when the
employee files a claim for unemployment benefits that employee’s conduct
prohibits the employee from being eligible for benefits under the Law.
            In Department of Corrections v. Unemployment Compensation Board
of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008), this Court held that when
determining whether a claimant has good cause for violating a work rule, a
corrections officer cannot be held to a higher standard of conduct based upon the
nature of the employment involved. Id. at 1015; see also Grieb v. Unemployment
Compensation Board of Review, 827 A.2d 422, 427 (Pa. 2003) (declining to graft a
public safety exception upon the good cause analysis required under Section 402(e)
of the Law); Navickas v. Unemployment Compensation Review Board, 787 A.2d
284, 288 (Pa. 2001) (rejecting the application of a higher standard of care for


                                        11
health care workers in a determination of whether a claimant’s conduct amounts to
willful misconduct under the Law). To determine whether the proscribed use of
language amounts to willful misconduct or whether the claimant had good cause,
we examine the context in which the language was used, including whether the use
of abusive language was de minimis or provoked.             Brown v. Unemployment
Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth. 2012); Cundiff v.
Unemployment Compensation Board of Review, 489 A.2d 948, 951 (Pa. Cmwlth.
1985). If a claimant has demonstrated that the use of profanity or offensive
language was provoked by the situation or the person to whom the claimant has
addressed the proscribed language, the claimant will have carried his or her burden
to show that good cause existed despite the claimant’s violation of a work rule.
Brown, 49 A.3d at 937; Cundiff, 489 A.2d at 951.
             This Court concluded that a claimant had good cause for warning his
superior that future physical contact would be met in kind after the supervisor
slapped the claimant’s hand away while the claimant was gesturing during an
argument. First Family Federal Savings and Loan Association v. Unemployment
Compensation Board of Review, 449 A.2d 870, 872 (Pa. Cmwlth. 1982). We
reasoned that “the remark, nurtured in the heat of the argument, was clearly
conditional (i.e. [claimant] threatened to retaliate only if his physical integrity were
violated once more [footnote omitted]), and there was no indication whatsoever
that the [claimant] had any intent to act in accordance with the remark.” Id. at 873
(emphasis in original).     In Arnold v. Unemployment Compensation Board of
Review, 703 A.2d 582 (Pa. Cmwlth. 1997), this Court concluded that the claimant
had good cause for referring to a customer in a profane manner because the
claimant was instinctively responding to almost being hit by the customer’s car.


                                          12
Id. at 584. We also concluded that the claimant had good cause in Miller v.
Unemployment Compensation Board of Review, 83 A.3d 484 (Pa. Cmwlth. 2015),
overruling the Board, which had concluded that the claimant should have retreated
after a coworker had grabbed the claimant, threatened him, and pushed the
claimant into a tool cart. Id. at 488. In response to the coworker’s conduct in
Miller, the claimant pushed back; we concluded that the claimant’s use of physical
contact was “instantaneous and reflexive,” and that the claimant had a right to
protect himself against his coworker’s physical assault. Id.; see also Perez v.
Unemployment Compensation Board of Review, 736 A.2d 737 (Pa. Cmwlth. 1999)
(concluding that the claimant had good cause for pushing of coworker because
supervisor had deliberately set out to have coworker provoke claimant’s actions).
            Employer argues that Claimant was the instigator and that his
comment was not instantaneous and reflexive. Employer contends that Claimant
made a physical threat to a minor after his supervisor had intervened, after the
minor visitor had been removed from the building, and after any threat had
dissipated and Claimant should have removed himself from the situation.
However, Employer’s argument disregards the Board’s credibility findings and is
contradicted by its own witness’ testimony.
            Claimant’s unprofessional remark came only after the guardian
reentered the building, reigniting the situation.       Claimant’s response was
instantaneous and, unlike the claimant in First Family, it was not conditional;
Claimant’s use of the past tense and repeated denial of lesser physical conduct in
the heat of the moment belied any intent to turn his words into actions. Claimant
was being impugned and he reacted much like the Claimant in Arnold reacted.
Notably absence from the record before the Board was any evidence disproving


                                        13
Claimant’s version of events.       Employer did not submit the subpoenaed
surveillance video, did not present the testimony of the minor visitor and his
guardian, and did not present or submit testimony from two witnesses who had
been in the visiting room at the time the events began. (R. Item 13, H.T. at 18, Ex.
E-1.) Moreover, Lieutenant Snodgrass testified that he instructed Claimant to
remain in the lobby, creating a barrier to Claimant’s ability to remove himself from
the situation as Employer argues he should have done. The record, taken as a
whole, supports the Board’s conclusion that Claimant’s inappropriate language
was the culmination of repeated provocations by the minor visitor and his
guardian. While, like the Board, we do not condone Claimant’s conduct, our
holding does not rest upon whether Claimant should have been terminated from
employment for his conduct, for it is Employer alone that makes that
determination. Rather, our holding rests solely upon the question of whether
Claimant’s conduct amounted to willful misconduct and like the Board, we must
conclude that it does not.
             Accordingly, the order of the Board is affirmed.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                        14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Franklin County,                    :
                                    :
                   Petitioner       :
                                    :
            v.                      : No. 134 C.D. 2015
                                    :
Unemployment Compensation           :
Board of Review,                    :
                                    :
                   Respondent       :


                                ORDER


            AND NOW this 13th day of May, 2016, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
AFFIRMED.



                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Franklin County,                          :
                          Petitioner      :
                                          :
                   v.                     :   No. 134 C.D. 2015
                                          :   SUBMITTED: August 14, 2015
Unemployment Compensation                 :
Board of Review,                          :
                    Respondent            :


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


DISSENTING OPINION BY
JUDGE LEADBETTER                              FILED: ___May 13, 2016____________


             I must respectfully dissent. I agree with Employer and the referee.
Unlike the cases relied upon by the majority, such as Arnold and Miller, where the
claimants' actions were instinctive and reactive to the provoking stimulus, any
perceived threat to Puchalski had been removed and he was speaking with
Visitor’s guardian. I believe that Puchalski’s conduct deviated from that which
Employer can reasonably expect from a corrections officer. The difficulty in
maintaining order in a prison would be exacerbated if corrections officers
threatened physical retaliation at every perceived provocation. Puchalski’s
apparent inability to control himself when confronted by a sixteen-year-old clearly
calls into question his ability to act appropriately when dealing with inmates.
             Employer has a standard of conduct policy, of which Puchalski was
aware and with which he was expected to comply, that requires employees to be
courteous and discreet to members of the public, inmates and staff and to maintain
proper decorum and command of temper and avoid the use of offensive, insolent,
profane or obscene language. I must conclude that the record establishes that
Puchalski violated that policy and that he did not establish good cause for his
violation. See Dep’t of Corr. v. Unemployment Comp. Bd. of Review, 943 A.2d
1011, 1017 (Pa. Cmwlth. 2008) (decision based on claimant’s failure to prove good
cause rather than a higher standard of conduct for corrections officers).
             Accordingly, I would reverse the order of the Board.




                                       _____________________________________
                                       BONNIE BRIGANCE LEADBETTER,
                                       Judge




                                       BBL-2
