               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Tom Green and Associates, P.C.,         :
                 Petitioner                 :
                                            :    No. 2377 C.D. 2014
              v.                            :
                                            :    Submitted: June 19, 2015
Unemployment Compensation                   :
Board of Review,                            :
                 Respondent                 :


BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: August 27, 2015


              Dr. Tom Green & Associates, P.C., (Employer) petitions for review of
the November 21, 2014 order of the Unemployment Compensation Board of Review
which affirmed a referee’s determination and held that Mary Jane Vasko (Claimant)
was not ineligible for benefits under section 402(e) of the Unemployment
Compensation Law (Law).1 We affirm.
              Claimant was employed by Employer as a dental assistant and worked
part-time from April 1, 2014, until she was discharged on May 27, 2014. (Board’s
Finding of Fact No. 1.) The local service center determined that Claimant was not

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides than an employee shall be ineligible for compensation for any
week in which her unemployment is due to her discharge or temporary suspension from work for
willful misconduct connected with her work.
ineligible for benefits under section 402(e) of the Law. Employer appealed, and a
referee held a hearing at which both Claimant and Dr. Tom Green participated pro se
and provided conflicting narrative accounts of the events leading to Claimant’s
discharge.
             The referee found that Claimant did not deliberately violate any of
Employer’s rules or policies and affirmed the local service center’s determination.
Employer appealed to the Board, which specifically credited Claimant’s testimony
and affirmed the referee’s decision.
             The Board issued the following findings of fact:

             2. Before the claimant actually began working, she
             informed the employer that she needed a particular day off
             because of a doctor’s appointment for her son. The
             employer told the claimant he would not schedule her for
             that day.

             3. There were many instances when the claimant would
             make the employer aware of a personal situation she was
             having and would let him know she was still available to
             work albeit she might be late.

             4. Each time, the employer would tell the claimant not to
             come in and to take the day off.

             5. Prior to working for the employer, the claimant worked
             for three years at another dentist’s office and was used to
             performing procedures a certain way.

             6. During that three-year period, the claimant took
             impressions, set crowns and packaged them by herself
             without complaints from patients.

             7. The claimant had never used the type of impressions
             machine the employer had in his office.

             8. Instead of allowing the claimant to practice, the employer
             made her use the machine as soon as a patient came in. The

                                          2
             claimant did not properly use the machine based on a lack
             of training.

             9. The claimant was shown how to clean instruments, but
             never told which soap to use.

             10. The claimant allegedly left debris on instruments after
             cleaning, but she was never made aware of it until she was
             terminated.

             11. The claimant was not the only employee in the office
             that cleaned instruments.

             12. The claimant did not deliberately violate the employer’s
             rules but attributed it to force of habit from her previous
             employer which she was working to break.

             13. One day, another employee left early, leaving the
             claimant responsible to perform tasks she was not used to
             performing and not trained to do.

             14. The claimant was not properly trained how to clean
             instruments or use the impression machine.

             15. Patients that came in complaining about poor dental
             work had the work performed a month before the claimant
             started working for the employer.

             16. The employer complained about the claimant’s phone
             going off.

             17. The claimant’s phone alarm would only go off around
             the lunch hour and before patients were present to alert her
             as to how much time she had to run errands during lunch.

             18. On May 27, 2014, the employer terminated the claimant
             for insubordination because she allegedly would go against
             his wishes of what he wanted her to do.
(Board’s decision at 1-2.)
             Based upon the above findings, citing Claimant’s credible testimony and
its consideration of Employer’s brief, the Board found that Claimant’s actions did not

                                          3
rise to the level of willful misconduct. The Board affirmed the referee’s decision and
held that Claimant was not ineligible for benefits under section 402(e) of the Law.
The Board denied Employer’s request for reconsideration.
              On appeal to this Court,2 Employer argues that the Board’s decision is
not supported by substantial evidence, disregards the evidence of record, and is
contrary to Pennsylvania law. We disagree.
              While the Law does not define the term willful misconduct, our courts
have defined it as including: wanton or willful disregard for an employer’s interests;
deliberate violation of an employer’s rules; disregard for standards of behavior which
an employer can rightfully expect of an employee; or negligence indicating an
intentional disregard of the employer’s interest or an employee’s duties or
obligations. Navickas v. Unemployment Compensation Board of Review, 787 A.2d
284, 288 (Pa. 2001). In this case, Employer asserts that Claimant violated several
work rules and was willfully disobedient.
              An employer contesting a claimant’s right to benefits pursuant to section
402(e) bears the burden of proving willful misconduct. Walsh v. Unemployment
Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). If the
employer satisfies its initial burden, the burden then shifts to the employee to
demonstrate good cause for her actions. Id. A claimant establishes good cause by
demonstrating that her actions were justified or reasonable under the circumstances.
Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12, 16 (Pa.
Cmwlth. 2009). Whether or not an employee’s actions amount to willful misconduct

       2
          Our scope of review is limited to determining whether constitutional rights have been
violated, whether errors of law were committed, or whether findings of fact are supported by
substantial evidence. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124,
1127 n.4 (Pa. Cmwlth. 2010).



                                              4
is a question of law subject to review by this Court.          Nolan v. Unemployment
Compensation Board of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
             Employer first notes, correctly, that the Board’s Finding of Fact No. 1
states that Claimant worked 40-45 hours a week for Employer, whereas the record
reflects that she only worked part-time. Because this finding is not material to the
Board’s determination of willful misconduct, we conclude that this statement is
harmless error.
             Employer also challenges the Board’s Findings of Fact Nos. 7, 8, 9, 10,
12, 14, 15, and 17. As support for each of those challenges, Employer cites the
testimony of Dr. Green that he specifically told Claimant how to clean instruments,
how to mix impression materials for crowns, and to turn her cell phone off during
work hours, and that Claimant did not follow his instructions.        (R.R. at 5a-6a.)
Employer also cites a June 14, 2014 letter from Dr. Green requesting an appeal from
the local service center’s determination. (R.R. at 14a-18a.)
             However, the Board accepted Claimant’s contrary testimony as credible.
According to Claimant, she had previously worked for three years for another dentist
taking impressions and setting crowns and never had a problem with a patient.
Claimant said that Employer’s equipment was different from what she had used
before and that Employer did not give her any training or practice. With respect to
cleaning the equipment, Claimant testified that a coworker showed her how to clean
the instruments but never told her which soap to use. Claimant added that she was
not the only employee who cleaned the instrument trays and she was not informed of
any problem with debris on the instruments until she was discharged. Claimant also
explained that she used her cell phone as an alarm during her lunch hour and that she




                                           5
sometimes forgot to turn the alarm off when she returned from lunch. (R.R. at 7a-8a;
Board’s Findings of Fact Nos. 5-11, 17.)
              We conclude that Claimant’s credible testimony constitutes substantial
evidence to support the Board’s findings that she was not properly trained by
Employer to perform certain dental procedures and that she did not deliberately
violate Employer’s rules, but was used to performing procedures a certain way based
on her years of experience with a prior employer.
              In unemployment compensation proceedings, the Board is the ultimate
fact-finder, empowered to determine the credibility of witnesses and resolve conflicts
in evidence; the Board’s findings are conclusive on appeal where they are supported
by substantial evidence. Curran v. Unemployment Compensation Board of Review,
752 A.2d 938, 940 (Pa. Cmwlth. 2000). In this case, the Board resolved conflicts in
testimony in Claimant’s favor, and the testimony accepted by the Board constitutes
substantial evidence supporting the Board’s findings. Those findings in turn support
the Board’s conclusion that Claimant’s actions did not constitute willful misconduct. 3
              Accordingly, we affirm.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge




       3
          Employer’s second argument, that the Board erred in concluding that the evidence of
record did not satisfy Employer’s burden to prove willful misconduct, also relies on Employer’s
preferred version of the facts rather than those found by the Board.



                                              6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dr. Tom Green and Associates, P.C.,     :
                 Petitioner             :
                                        :    No. 2377 C.D. 2014
            v.                          :
                                        :
Unemployment Compensation               :
Board of Review,                        :
                 Respondent             :


                                      ORDER


            AND NOW, this 27th day of August, 2015, the order of the
Unemployment Compensation Board of Review, dated November 21, 2014, is
affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
