               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel P. Saylor II,                        :
                            Petitioner      :
                                            :
              v.                            :
                                            :
Unemployment Compensation                   :
Board of Review,                            :    No. 694 C.D. 2016
                    Respondent              :    Submitted: December 2, 2016


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                      FILED: February 3, 2017

              Samuel P. Saylor II (Claimant) petitions this Court, pro se, for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) March 28, 2016
order affirming the Referee’s decision denying him UC benefits under Section 402(e)
of the UC Law (Law).1 The sole issue before the Court is whether the UCBR erred
by determining that Claimant committed willful misconduct.               After review, we
affirm.
              Claimant was employed as a full-time operations director for Simon
Management Associates, LLC (Employer) from June 2012 through December 21,
2015. Employer issued Claimant a credit card to be used for work-related purchases.
Claimant purchased shelves with Employer’s credit card. Employer was not aware of
the reason for Claimant’s purchase of the shelves. The credit card receipts specified

       1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
       The UCBR also determined that Claimant received a non-fault overpayment of UC benefits,
but Claimant did not appeal from that determination.
that a shower curtain, a $50.00 gift card and a white drawer unit had also been
purchased. Claimant stated that he intended to use the shelves for Employer’s new
computer system; however, he had no explanation for the shower curtain or the gift
card. After Employer could not locate the shower curtain or gift card on its property,
it discharged Claimant for misusing Employer’s credit card.
              Claimant applied for UC benefits. On January 15, 2016, the Allentown
UC Service Center found Claimant ineligible for benefits under Section 402(e) of the
Law. Claimant appealed and a Referee hearing was held. On February 8, 2016, the
Referee affirmed the UC Service Center’s determination. Claimant appealed to the
UCBR and requested a remand hearing. On March 28, 2016, the UCBR denied the
remand request, adopted the Referee’s findings and conclusions, and affirmed the
Referee’s decision. Claimant appealed to this Court.2
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for unemployment compensation benefits when
              his unemployment is due to discharge from work for willful
              misconduct connected to his work. The employer bears the
              burden of proving willful misconduct in an unemployment
              compensation case. Willful misconduct has been defined as
              (1) an act of wanton or willful disregard of the employer’s
              interest; (2) a deliberate violation of the employer’s rules;
              (3) a disregard of standards of behavior which the employer
              has a right to expect of an employee; or (4) negligence
              indicating an intentional disregard of the employer’s
              interest or a disregard of the employee’s duties and
              obligations to the employer.




       2
         “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).


                                                 2
Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747 n.4 (Pa.
Cmwlth. 2000) (citation omitted).

            For an employee’s conduct to constitute willful misconduct,
            it must be ‘of such a degree or recurrence as to manifest
            culpability, wrongful intent, or evil design, or show an
            intentional and substantial disregard of the employer’s
            interest or of the employee’s duties and obligations to the
            employer.’ [Grieb v. Unemployment Comp. Bd. of Review,
            827 A.2d 422, 425-26 (Pa. 2003)]. Furthermore, this Court
            has previously held that an employee’s theft from an
            employer is willful misconduct.

Reading Area Water Auth. v. Unemployment Comp. Bd. of Review, 137 A.3d 658,
662 (Pa. Cmwlth. 2016).
            Claimant first argues that the UCBR erred by not considering the
testimony of his witness, Employer’s Whitehall Mall housekeeping and maintenance
manager, Cyrus Alpha (Alpha). We disagree.
            Although Claimant testified that Alpha witnessed his purchases, and
Claimant questioned Employer’s Lehigh Valley Mall manager John Ferreira
(Ferreira) with regard to Alpha’s statements, Alpha did not testify at the hearing.
Thus, the UCBR was left to weigh the evidence of Claimant’s testimony regarding
what Alpha witnessed and Ferreira’s testimony concerning Alpha’s declarations.
            The law is well established that

            the [UCBR] is the ultimate fact-finder in unemployment
            compensation matters and is empowered to resolve all
            conflicts in evidence, witness credibility, and weight
            accorded the evidence. It is irrelevant whether the record
            contains evidence to support findings other than those made
            by the fact-finder; the critical inquiry is whether there is
            evidence to support the findings actually made. Where
            substantial evidence supports the [UCBR’s] findings, they
            are conclusive on appeal.




                                          3
Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted). Here, because the Referee expressly determined
that “[C]laimant’s testimony is rejected as not credible,” Referee Dec. at 2, the UCBR
did not err by disregarding Alpha’s testimony.
            Claimant next argues that the UCBR erred by finding as a fact that
Claimant purchased a gift card when no receipt was presented. We disagree.
            Our Supreme Court has held:

            Substantial evidence is correctly defined as ‘such relevant
            evidence as a reasonable mind might accept as adequate to
            support a conclusion.’ Murphy v. [] [Dep’t] of Pub[.]
            Welfare, . . . 480 A.2d 382, 386 ([Pa. Cmwlth.] 1984) . . . .
            The evidence in this case includes testimony from [Ferreira]
            that he [saw the receipt containing a $50.00 gift card. See
            Notes of Testimony, February 5, 2016 at 4, 7]. On this
            whole record, a reasonable man could accept that testimony
            and if he did so it would be adequate to support the
            [UCBR’s] finding that [Claimant] engaged in willful
            misconduct.

Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1387-88 (Pa. 1985).
Accordingly, the UCBR did not err by accepting Ferreira’s testimony that Claimant
purchased the gift card with Employer’s credit card.
            The UCBR adopted the Referee’s findings that:

            [E]mployer testified that [C]laimant signed receipts that
            contained purchases for items that had no business purpose,
            including a shower curtain and a gift card. [E]mployer
            testified that it was not able to find the items purchased and
            that [C]laimant failed to explain why they were purchased.
            [E]mployer showed that [C]laimant made purchases on
            [E]mployer’s credit card and that there was no business
            purpose for those purchases. [E]mployer has shown that
            [C]laimant misused [E]mployer’s credit card.
            [C]laimant denied that he purchased the shower curtain and
            gift card and opined that the store where he purchased the
            shelves mistakenly included purchases he did not make on

                                          4
            the receipt.   [C]laimant’s testimony is rejected as not
            credible.
            Since [E]mployer has shown that [C]laimant misused the
            employer’s credit card, [C]laimant is not eligible for
            unemployment compensation benefits.

Referee Dec. at 2. Viewing the evidence in the light most favorable to Employer, as
we must, we hold that substantial evidence supports the UCBR’s holding that
Claimant is not eligible for UC benefits under Section 402(e) of the Law.
            For all of the above reasons, the UCBR’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel P. Saylor II,                   :
                        Petitioner     :
                                       :
            v.                         :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 694 C.D. 2016
                    Respondent         :


                                     ORDER


            AND NOW, this 3rd day of February, 2017, the Unemployment
Compensation Board of Review’s March 28, 2016 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
