           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laymen’s Retreat League,                   :
                       Petitioner          :
                                           :
             v.                            :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 777 C.D. 2014
                    Respondent             :   Submitted: March 27, 2015


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: July 31, 2015

             Laymen’s Retreat League (Employer) petitions this Court for review of
the Unemployment Compensation (UC) Board of Review’s (UCBR) April 8, 2014
order reversing the Referee’s decision denying UC benefits under Section 402(e) of
the UC Law (Law).1 Employer presents two issues for this Court’s review: (1)
whether the UCBR’s credibility determinations were against the weight of the
evidence; and (2) whether the UCBR’s finding of animosity between Sally J. Tygh
(Claimant) and two of her co-workers was against the weight of the evidence. After
review, we affirm.
             Claimant was employed full-time as a dining room supervisor with
Employer from January 1, 1991 until September 15, 2012. On September 15, 2012,


      1
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (relating to discharge for willful misconduct).
Claimant’s co-workers, Monica and Alexis Luminella (Luminella sisters), claimed
they saw Claimant in the break room with her hands in one of their purses. When the
Luminella sisters walked into the break room, Claimant heard the door open, turned
to look, and asked them if they had seen a busboy named Cole Fanelli (Cole).
Neither of the Luminella sisters said anything to Claimant about the purse, nor did
they respond to Claimant’s query as to Cole’s whereabouts. Nothing was taken from
the purse. Alexis Luminella reported the alleged incident to the manager on duty,
who reported it to her supervisor, and it went up the chain of command to Employer’s
President James A. Fitzsimmons (Fitzsimmons). When confronted by Employer,
Claimant denied having her hands in the purse. Claimant explained that she was in
the break room looking for Cole because she was going to ask him to put the jellies
out. The police were called, and an investigation was conducted, but Claimant was
not charged with any criminal offense.       Notwithstanding, Fitzsimmons notified
Claimant that she was suspended with pay pending a further investigation. On
September 22, 2012, Fitzsimmons advised Claimant that her employment was
terminated and Claimant expressed that Employer’s action was unfair. Employer
notified Claimant by registered letter that her employment was ended because
Employer believed that she was in another employee’s purse.
            Claimant applied for UC benefits.        On December 20, 2012, the
Harrisburg Overflow UC Service Center determined that Claimant was eligible for
UC benefits under Section 402(e) of the Law. Employer appealed and a Referee
hearing was held on February 21, 2013. Claimant did not attend. On February 22,
2013, the Referee reversed the UC Service Center’s determination.         Claimant
appealed to the UCBR. The UCBR remanded the case to the Referee for another
hearing to determine whether Claimant had good cause for her non-appearance at the
first hearing, and to take evidence on the merits. On June 4, 2013, the UCBR


                                         2
determined that Claimant did not have good cause for her absence from the first
hearing and, based solely on the first hearing, affirmed the Referee’s decision.
              On June 19, 2013, Claimant made a request for reconsideration. On July
15, 2013, the UCBR denied Claimant’s reconsideration request because she had filed
an appeal in Commonwealth Court. On November 19, 2013, the UCBR applied to
this Court for remission of the appeal. On November 22, 2013, this Court granted the
UCBR’s request and remanded the matter to the UCBR to reconsider its June 4, 2013
decision based on the entire record.2 On April 8, 2014, the UCBR reversed the
Referee’s decision and determined that Claimant was eligible for UC benefits under
Section 402(e) of the Law. Employer appealed to this Court.3
              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


       2
              Upon further review, the [UCBR] determined that, although
              [C]laimant had not asked for a continuance in the proper manner due
              to her lack of legal training, she did not intentionally refuse to attend
              the Referee’s hearing, but rather was merely exercising her due
              process right to counsel at the hearing, albeit inartfully so, such that
              she did have proper cause for her nonappearance.
UCBR Dec. at 3.
       3
         “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).


                                                 3
             interest or a disregard of the employee’s duties and
             obligations to the employer.

Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4
(Pa. Cmwlth. 2000) (citation omitted).          “When an employee is discharged for
violating a work rule, the employer must prove the existence of the rule and the fact
of its violation.” Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377
(Pa. Cmwlth. 2012). “Once the employer has met its initial burden, the burden then
shifts to the claimant to show either that the rule is unreasonable or that claimant had
good cause for violating the rule.” Cnty. of Luzerne v. Unemployment Comp. Bd. of
Review, 611 A.2d 1335, 1338 (Pa. Cmwlth. 1992).
             Employer argues that “the [UCBR’s] credibility determination in favor
of Claimant as to Claimant’s reasons for being in the break room was not supported
by substantial evidence.” Claimant Br. at 14 (bold emphasis and uppercase omitted).
             The law is well established that:

             [T]he [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.

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa.
Cmwlth. 2008) (citations omitted; emphasis added). This Court has explained:

             Substantial evidence is relevant evidence upon which a
             reasonable mind could base a conclusion. In deciding
             whether there is substantial evidence to support the
             [UCBR’s] findings, this Court must examine the testimony
             in the light most favorable to the prevailing party . . . giving
             that party the benefit of any inferences which can logically
             and reasonably be drawn from the evidence.


                                            4
Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
            Here, the UCBR found as a fact: “[C]laimant explained that she was in
the break room to look out the window at the area below where the young workers
gathered to smoke because she was going to ask the busboy to put the jell[ies] out.”
UCBR Dec. at 2, Finding of Fact (FOF) 10.
            When asked what she said to Fitzsimmons during Employer’s
investigation into the handbag incident, Claimant testified at the remand hearing as
follows:

            I told him that I was at work, I was out in the dining room.
            I had got to work early that morning, a little earlier than
            normal. The Luminella girls were out in the dining room
            with me. We were the only three people in the dining room
            at that time. A retreatant [sic] came up to me and asked me
            if there were jellies. The jellies that sit next to the toasters
            weren’t put out yet. I was working on one side of the
            dining [room] where the toasters are, the girls were working
            on the other side of the dining room. So I stepped into the
            kitchen, I was right by the kitchen door to see if I saw one
            of the boys that I had seen earlier tha[t] morning. His name
            is [Cole]. I didn’t see anyone in the kitchen at that time so I
            walked to where our break room is and I looked in the
            break room thinking somebody would be in there to put
            the jellies out. There was no one in there, so I walked
            over to the window because there’s a stairwell outside
            that sometimes the kids will go out and they’ll smoke out
            there. So I walked over to the window and I looked out
            the window and saw no one. And then I heard the girls --
            well I didn’t know it was the girls, but I heard the door open
            behind me. And I turned around and the two Luminella
            sisters were walking into the break room. And I turned to
            them and I said have you seen Cole, and both girls said no.
            And so I walked out of the break room, the girls said
            nothing else to me, and I went back through the hallway
            back into the kitchen, and I did see Cole at the dish
            machine. And I said to him at that time, I said we need to
            put the jellies out. And he said that [the other supervisor]
            Ashley Hope [(Hope)] had just put them out.
                                           5
Reproduced Record (R.R.) at 91a (emphasis added).             On cross-examination,
Employer’s counsel questioned Claimant as follows:

            E[mployer’s] L[awyer] And why would you go in the
            break room to look for Cole?
            C[laimant] Because when, a lot of times when the kids had
            finished – I call them kids -- but when they had, the young
            people had finished with their jobs they would go into the
            break room before breakfast or a meal would start and they
            would kind of congregate and like talk in there. So that was
            the first idea I had, maybe he had walked back to the break
            room.
            EL And when you opened the door and saw that he wasn’t
            there why didn’t you just leave at that point?
            C Because I know that if they’re not in the break room
            sometimes they sit out at the stairwell. There’s like a low
            stairwell, steps come down, goes across, then it comes back
            up into the kitchen area, and they’ll go out there and smoke
            and hang out and talk, so I thought perhaps he would be out
            there.
            EL Why wouldn’t you just go out to the stairwell to see if
            he was there?
            C Because I was already in the break room so I just walked
            over to look out the window that was right close to where
            the stairwell was[].

R.R. at 99a-100a. The above testimony is relevant evidence upon which a reasonable
mind could conclude that Claimant went into the break room to look for Cole.
Accordingly, the UCBR’s finding of fact is supported by substantial evidence.
            Employer next argues that “the [UCBR’s] finding of animosity between
Claimant and the Luminella sisters, and that the Luminella sisters had motive to place
Claimant in a bad light was not supported by substantial evidence.” Claimant Br. at
17 (bold emphasis and uppercase omitted). The UCBR opined: “[C]laimant testified
that there was animosity between her and the [Luminella] sisters for several incidents


                                          6
that had previously occurred, and the [UCBR] credits this testimony.” UCBR Dec. at
4. The UCBR concluded:

            Given that [C]laimant has consistently denied the
            allegations, and provided the more reasonable explanation
            for her presence in the break room on the day in question,
            and given that the only eye-witnesses to the alleged
            misconduct were sisters who had a motive to place
            [C]laimant in a bad light, the [UCBR] is constrained to
            find and conclude that [E]mployer did not bear its burden of
            proving willful misconduct as [a] matter of law in this case.

Id. (emphasis added).
            At the remand hearing, Claimant’s counsel presented a letter Claimant
wrote to Fitzsimmons regarding why she believed the Luminella sisters had animosity
towards her. In the letter Claimant described an incident that occurred on June 12,
2012, wherein, Hope had complained to their supervisor about Claimant leaving work
early. The supervisor called Claimant who voluntarily returned to work.          When
Claimant left work Hope and the Luminella sisters were outside smoking, and when
she returned, they were still outside smoking. Claimant and Hope went back and forth
about why Hope made the supervisor call Claimant when the work was already
completed, and eventually Hope and the Luminella sisters got in Hope’s car and drove
away. See Ex. CB-1. The letter continued regarding Claimant’s correction of the three
girls’ prior use of foul language. The letter expressly stated: “I think Ashley [Hope],
Monica [Luminella] and Alexis [Luminella] have animosity towards me because
of my constant correction of [their] bad language around retreatants [sic] and co-
workers.” Ex. CB-1 at 2 (emphasis added). The letter was accepted into evidence.
            In reference to the letter, Claimant’s counsel questioned Claimant as
follows:

            C[laimant’s] L[awyer] Now the June, 2012 incident when
            you wrote this letter that wasn’t the first time you had


                                          7
             mentioned to [] Fitzsimmons or anybody at [Employer]
             about the issue that occurred on June 12th, correct?
             C[laimant] Correct.
             CL And was there also an issue as you stated in the letter
             where there was an accusation that you had left and not
             done your work, that you had gone home early?
             C    That’s correct.
             CL And were the Luminella sisters part of the accusation?
             C    They were.

R.R. at 105a. During recross-examination, Employer’s counsel questioned Claimant
about the fact that Hope was the one who complained about her during the June 12 th
incident, not the Luminella sisters and Claimant testified as follows:

             E[mployer’s] L[awyer] So if I understand your testimony
             correctly, [Hope] is the one who complained?
             C[laimant] [Hope] called [Employer’s supervisor] Jim
             Hall. But when I got, when I saw the two glasses I went
             back out on the loading dock and I said to the girls, I said
             there is nothing to be done here, I don’t know what all this
             is about, I don’t really understand this. So the girls at that
             point were getting ready to leave, they were - walking
             toward [Hope’s] car. [Hope] said, [sic] I said [Hope], what
             is going on here? [Hope] used some profanities and said
             I’m tired of doing your job. And the girls [the Luminella
             sisters] just kind of snickered and laughed about it and
             didn’t say anything. And they all got in [Hope’s] car and
             they left.
             EL So [Claimant], you don’t know that the Luminella
             sisters complained?
             C Well I don’t, I don’t know that they complained but they
             sure didn’t say anything to defend the situation. They just
             stood there and snickered about it.
             EL All right. So they were there when you were having a
             conversation with [Hope] . . .

                                           8
           C Right, and . . .
           EL . . . who was the one that complained?
           C . . . and the girls are this little tight group of girls.
           They’re very good friends. And so I would assume that,
           you know, [Hope] and them got together and decided this
           [is] what they were -- I assumed they got together . . .
           EL All right. So you’re assuming that somehow they were
           involved because . . .
           C Yes.
           EL . . . they’re friends with [Hope]?
           C Right.
           EL You don’t know that they were involved?
           C I -- well let’s put it this way, I would say that I do
           know that they were involved in it because [of] the way
           they conducted themselves when I went back over there.
           EL So you know they were involved because they got into
           [Hope’s] car and they’re friends with [Hope]?
           C No. I know they’re involved by their mannerisms
           when I went back over there, how you have just a
           knowledge of knowing when people are back-stabbing
           you.
           EL Now do you think that you have some issues with the
           Luminella sisters that you think that maybe they don’t
           like you?
           C Do I think that now?
           EL Yes.
           C Of course I think that now.
           EL Well, no, back at that time.
            C Back at that time, yeah, I think there was a lot going
            on behind my back at that time.
R.R. at 106a-108a (emphasis added).

                                        9
            Reviewing the letter and the above testimony in the light most favorable
to Claimant as the prevailing party, and giving Claimant the benefit of any inferences
which can logically and reasonably be drawn from the evidence as we must, the letter
and the testimony is relevant evidence upon which a reasonable mind could conclude
that there was animosity between Claimant and the Luminella sisters. Accordingly,
because there was substantial evidence to support the UCBR’s conclusion of
animosity, we will not disturb the UCBR’s credibility determination.
            For all of the above reasons, the UCBR’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Laymen’s Retreat League,               :
                       Petitioner      :
                                       :
            v.                         :
                                       :
Unemployment Compensation              :
Board of Review,                       :   No. 777 C.D. 2014
                    Respondent         :



                                    ORDER

            AND NOW, this 31st day of July, 2015, the Unemployment
Compensation Board of Review’s April 8, 2014 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
