               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Linda Dixon,                                   :
                              Petitioner       :
                                               :
                 v.                            :   No. 1900 C.D. 2013
                                               :   Submitted: June 27, 2014
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                   FILED: July 23, 2014



                 Petitioner Linda Dixon (Claimant) petitions for review of an order of
the Unemployment Compensation Board of Review (Board). The Board affirmed
an Unemployment Compensation Referee’s (Referee) decision denying Claimant
unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (Law),1 based on willful misconduct. For the
reasons set forth below, we affirm the Board’s order.
                 Claimant filed for unemployment compensation benefits after being
discharged from her employment as a Senior Nursing Aid with The Children’s

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Hospital of Philadelphia (Employer) on November 29, 2012. The Erie UC Service
Center (Service Center) issued a determination denying benefits to Claimant based
on willful misconduct. (Certified Record (C.R.), Item No. 5.) The Service Center
also determined that Claimant was ineligible for backdating credit under
Section 401(c) of the Law,2 because Claimant failed to prove that her reason for
not filing her claim in a timely manner was one which would permit backdating of
the claim under 34 Pa. Code § 65.43a.3 (Id.) Claimant appealed the Service
Center’s determination, and a Referee conducted an evidentiary hearing.
                 At the hearing, Claimant was not represented by counsel, and she did
not present any witnesses. (C.R., Item No. 9.) Employer was represented by its
Tax Consultant Representative, Joseph Piunti (Piunti), and presented two
witnesses, Zene Colt (Colt) and Denise Pavan (Pavan). (Id.) The Referee began
by asking Claimant background questions concerning her employment with
Employer. (Id. at 6.) Claimant testified that Pavan was the one who told her that
her employment was being “terminated” for dishonesty regarding her timesheet.
(Id. at 7.)
                 Next, the Referee spoke to Colt, who affirmed Claimant’s work
history with Employer. (Id. at 8-9.) Colt testified that Claimant’s employment
was “terminated for falsification of timesheet records” in violation of one of
Employer’s policies. (Id. at 9-10.) Colt testified that Claimant had access to the



       2
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 801(c).
       3
        34 Pa. Code § 65.43a provides, in pertinent part, that an application for benefits may be
backdated “if the claimant did not file the application for a reason [listed within this section].”



                                                2
policies and that this single offense can lead to termination. (Id. at 10.) Colt
explained:
             On March 15th, as indicated on the STAR update form
             completed by Ms. Dixon, Ms. Dixon claims that she
             reported to work at 7:00 p.m. Upon investigation
             conducted by Ms. Pavan and also which I was party to
             the footage from the security video as well as the swipe
             report, which the swipe report is your service Center 13
             Exhibit, shows that Ms. Dixon did not arrive at
             Children’s Hospital Philadelphia on March 15th until
             close to 8:00 p.m. although her star update sheet says
             7:00 p.m.

(Id. at 11.) Colt stated that he was made aware of the incident when Pavan
informed him that another employee reported that Claimant asked the employee to
complete a timesheet for her. (Id.) Colt testified that the other employee’s concern
is what prompted the investigation. (Id.)
             Pavan testified that Claimant was scheduled to begin work at
7:00 p.m., but review of the record of Claimant’s swipes in and out of the building
revealed that her earliest swipe was at 7:58 p.m. (Id. at 16.) Pavan explained that
she reviewed the surveillance footage, and it showed Claimant entering the
building at 7:58 p.m. with her ID around her neck. (Id. at 17.) Pavan stated that
she asked Claimant to complete a timesheet to indicate the hours she worked on
March 15, 2012, so that she could be paid for the shift. (Id.) Pavan testified that
Claimant did not fill out the timesheet until April 28, 2012. (Id. at 17.) On the
timesheet, Claimant indicated that she started her shift at 7:00 p.m. (C.R., Item
No. 3.) Pavan said that she and Claimant corresponded through email, and she
asked Claimant for proof that she actually started at 7:00 p.m., as opposed to 7:58
p.m. as the records indicated. (C.R., Item No. 9, at 18-19.) Pavan further testified



                                            3
that Claimant failed to provide any satisfactory documentation as proof. (Id. at
20.)
               The Referee asked Claimant why she did not swipe in to work at
7:00 p.m. if that was the time she started. (Id. at 22.) Claimant testified that she
did not swipe in to work at 7:00 p.m., because she did not have her ID until her
sister brought it to her at around 7:30 p.m. while Claimant was on break. (Id. at
22-23.)    Claimant explained that the ID that she was seen wearing in the
surveillance video was her school ID and not the ID provided by Employer. (Id. at
23.) Claimant testified that she never had her sister testify on her behalf at any of
the grievance hearings, and she could not provide any documentation to prove that
she had gone on break or bought food at around 7:30 p.m. on the day in question.
(Id. at 25.)
               Following the hearing, the Referee issued a decision and order
affirming both of the Service Center’s determinations. (C.R., Item No. 10.) The
Referee made the following findings of fact regarding Claimant’s compensability
for unemployment benefits:
               1.   The Claimant was employed as a Senior Nursing
                    Aid from November 7, 2005[,] until November 29,
                    2012; at the time of separation the Claimant was
                    working 32 hours per week and was earning
                    $21.33 per hour.

               2.   The Employer has a policy which provides:

                    Employees are required to be truthful in all
                    work-related activities. Falsification by omission
                    or commission, either verbally or in writing with
                    respect to work-related materials or information,
                    including on the employment application or during
                    the application process will warrant discharge.


                                         4
3.    The Claimant was or should have been aware of
      the Employer’s policy concerning honesty.

4.    On March 15, 2012[,] the Claimant was scheduled
      to work from 7:00 p.m. to 7:30 a.m.

5.    The Employer’s [e]mployees are required to record
      their   time     of     arrival     by    swiping
      an Employer[-]supplied Identification Card.

6.    The Claimant did not swipe her card to record her
      arrival until 7:58 p.m., 58 minutes after her
      scheduled arrival time.

7.    On or about the end of March 2012, the Employer
      received reports that the Claimant had asked other
      workers to complete a “STAR Time Record
      Update Request” for the Claimant concerning her
      missing arrival swipe for March 15, 2012.

8.    The Employer commenced an investigation into
      the allegation that the claimant had failed to record
      her arrival for work by “swiping in” using her
      Employer-issued identification card.

9.    On April 28, 2012[,] the Claimant provided the
      Employer with a STAR Time Record Update
      Request indicating that she had arrived for work at
      7:00 p.m.

10.   The Employer asked the Claimant to provide
      documentation demonstrating that she had arrived
      at 7:00 p.m. rather than 7:58 p.m. as indicated by
      video surveillance. The Claimant failed to provide
      such documentation.

11.   The Claimant was discharged for falsification of
      time sheet record i.e., the STAR Time Record
      Update Request indicating that she had arrived for
      work at 7:00 p.m.



                            5
(C.R., Item No. 10.) The Referee determined that Employer fired Claimant for
willful misconduct, because she “failed to provide documentary evidence to the
Employer in support of her testimony” that she did not falsify her time sheet
record. (Id.)
                Claimant appealed to the Board, which affirmed the Referee’s
decisions and orders. (C.R., Item No. 12.) In so doing, the Board adopted and
incorporated the Referee’s findings and conclusions. (Id.) Claimant now petitions
this Court for review.
                On appeal,4 Claimant essentially argues (1) that the Referee’s findings
of fact, as adopted and incorporated by the Board, were not supported by
substantial evidence,5 and (2) that the Referee committed an error of law by
placing the burden of proof on Claimant instead of Employer.6
                We first address Claimant’s argument that the Board’s findings were
not supported by substantial evidence. Substantial evidence is defined as relevant
evidence upon which a reasonable mind could base a conclusion. Johnson v.
Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In
determining whether there is substantial evidence to support the Board’s findings,


       4
         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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
       5
           While Claimant fails to specifically challenge any individual finding of fact, it appears
that it is Claimant’s intent to challenge finding of fact number 11, which provides that she was
discharged for falsification of her timesheet.
       6
          Claimant does not appeal the Board’s determination that Claimant’s application for
benefits was ineligible for backdating under 34 Pa. Code § 65.43a.



                                                 6
this Court must examine the testimony in the light most favorable to the prevailing
party, giving that party the benefit of any inferences that can logically and
reasonably be drawn from the evidence.        Id. A determination as to whether
substantial evidence exists to support a finding of fact can only be made upon
examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of
Review, 378 A.2d 829, 831 (Pa. 1977). The Board’s findings of fact are conclusive
on appeal only so long as the record, taken as a whole, contains substantial
evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984).
“The fact that [a party] may have produced witnesses who gave a different version
of the events, or that [the party] might view the testimony differently than the
Board is not grounds for reversal if substantial evidence supports the Board’s
findings.” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106,
1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that
could support a contrary conclusion, it does not follow that the findings of fact are
not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of
Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
             In an unemployment case, it is well-settled that the Board is the
ultimate fact finder and is, therefore, entitled to make its own determinations as to
witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of
Review, 501 A.2d 1383, 1388 (Pa. 1985). The Board is also empowered to resolve
conflicts in the evidence.    DeRiggi v. Unemployment Comp. Bd. of Review,
856 A.2d 253, 255 (Pa. Cmwlth. 2004).           “Questions of credibility and the
resolution of evidentiary conflicts are within the sound discretion of the Board, and
are not subject to re-evaluation on judicial review.” Peak, 501 A.2d at 1388.




                                         7
               Here, Exhibits 13 and 14, Employer witnesses’ testimony, as well as
Claimant’s own testimony, constitute substantial evidence to support the Referee’s
finding, as incorporated by the Board, that Claimant was terminated for
falsification of her timesheet. Finding of fact number 11 provides: “The Claimant
was discharged for falsification of time sheet record i.e., the STAR Time Record
Update Request indicating that she had arrived for work at 7:00 p.m.” (C.R., Item
No. 10.) Exhibit 13 affirms Employer’s position that Claimant’s first swipe during
her shift on March 15, 2012, was at 7:58 p.m.                   (C.R., Item No. 9, at 15.)
Exhibit 14 shows that Claimant indicated on her timesheet that she began her shift
at 7:00 p.m. (Id. at 16; C.R., Item No. 3.) The Referee found credible Pavan’s
testimony that she gave Claimant many opportunities to provide documentation to
prove that she arrived to work at 7:00 p.m., and Claimant failed to do so. (C.R.,
Item No. 10.) In Claimant’s own testimony, she admits that she was unable to
provide Employer with any proof to support her contention that she arrived at work
at 7:00 p.m. (C.R., Item No. 9, at 25.) This evidence, taken as a whole and viewed
in a light most favorable to Employer, supports the Referee’s finding that Claimant
was terminated for falsifying her timesheet.               Thus, the findings of fact are
supported by substantial evidence and are conclusive.7




       7
         Claimant also attempts to argue that Employer witnesses’ testimony regarding what
they saw on the surveillance footage constitutes hearsay and is not supported by competent
evidence. (Petitioner’s Brief at 8.) However, the rule against hearsay only applies to
“statements,” which include “a person’s oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.” 225 Pa. Code § 801(a). Thus, Claimant’s argument is
unavailing, because Employer witnesses’ testimony as to what they saw on the surveillance does
not constitute hearsay.



                                                8
              Next, we address Claimant’s argument that the Referee committed an
error of law by placing the burden of proof on Claimant instead of Employer.
Claimant is correct in stating that in order for an individual to be denied
unemployment compensation benefits under Section 402(e) of the Law, the
employer bears the burden to prove that the claimant’s unemployment is due to the
claimant’s willful misconduct. Walsh v. Unemployment Comp. Bd. of Review,
943 A.2d 363, 369 (Pa. Cmwlth. 2008). In this case, the Board properly placed the
burden on Employer. (C.R., Item No. 9, at 2.) Employer met its burden by calling
witnesses and providing documentary evidence to support its position that
Claimant engaged in willful misconduct in connection with her employment by
falsifying her timesheet record and thereby violating Employer’s policy. (See
generally, C.R., Item No. 9.) In her brief, Claimant contends that the Referee
misplaced the burden, and, as support, Claimant quotes the Referee as stating that
“Claimant acknowledged that she had failed to provide documentary evidence to
the Employer in support of her testimony that she had arrived early for work.”
(Petitioner’s Brief, at 10.) The Referee’s statement, however, was not meant to
place any burden on Claimant with regard to proving or disproving willful
misconduct.     Instead, the Referee’s statement merely indicates that due to
Claimant’s failure to provide any documentation to support her claim, the evidence
weighs in Employer’s favor.        Accordingly, neither the Referee nor Board
committed an error of law with regard to the burden of proof.
              For the foregoing reasons, we affirm the Board’s order.




                                P. KEVIN BROBSON, Judge

                                          9
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Linda Dixon,                        :
                     Petitioner     :
                                    :
           v.                       :   No. 1900 C.D. 2013
                                    :
Unemployment Compensation           :
Board of Review,                    :
                    Respondent      :


                                  ORDER


           AND NOW, this 23rd day of July, 2014, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.




                           P. KEVIN BROBSON, Judge
