             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vital Support Home Healthcare,                :
                                              :
                             Petitioner       :
                                              :
                      v.                      : No. 1107 C.D. 2015
                                              : Submitted: September 29, 2017
                                              :
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :


BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: January 26, 2018



                Vital Support Home Healthcare (Employer) petitions for review from a
final order of the Unemployment Compensation Board of Review (Board), which
reversed a decision of a referee and granted unemployment compensation (UC)
benefits to Michael Johnson (Claimant) upon determining that he was not ineligible
for UC benefits under Section 402(e) of the Unemployment Compensation Law
(Law)1 for willful misconduct. Employer argues that the Board’s findings are not
supported by substantial evidence and that the Board capriciously disregarded
competent evidence. Upon review, we affirm.

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
                                    I. Background
             Employer employed Claimant as a home health aide from June 2012
until his last day of work on January 14, 2015.        After his separation from
employment, Claimant applied for UC benefits, which a local service center granted.
Employer appealed, and a referee held a hearing, at which Claimant and two
witnesses for Employer testified.
             Based on the testimony and other evidence presented, the referee found
that Claimant violated Employer’s absenteeism/attendance policy by failing to
report for work as scheduled or notify Employer in advance of his absence without
good cause. Thus, the referee concluded that Claimant was ineligible for UC
benefits under Section 402(e) of the Law for willful misconduct. Claimant appealed.
             On appeal, the Board reversed. Based on the record created by the
referee, the Board made the following findings. Claimant had been serving as a
home health aide for his ex-girlfriend. On January 14, 2015, Claimant received a
call from Employer advising him that the client no longer wanted Claimant to
provide services for her. Employer informed Claimant that no other clients were
available and that it would contact Claimant when work was available. Thereafter,
Claimant received no phone calls or mail from Employer. Board Op., 6/2/2015,
Findings of Fact (F.F.) Nos. 2-5.
             Although Employer’s witnesses refuted Claimant’s assertion that the
client no longer wanted Claimant’s services and that Claimant did not respond to
Employer’s phone calls, the Board resolved the conflicts in testimony in Claimant’s
favor. The Board noted that Employer could not verify the telephone number at
which Employer attempted to reach Claimant and that Employer mailed Claimant’s
discharge letter to an incorrect address. Because Claimant’s assignment ended


                                         2
through no fault of his own and no further work was provided, the Board concluded
that benefits may not be denied for willful misconduct under Section 402(e) of the
Law. Thus, the Board reversed the referee’s decision and awarded UC benefits to
Claimant. Employer then petitioned this Court for review.2


                                          II. Issues
              Employer contends that the Board erred in granting UC benefits to
Claimant because its findings are not supported by substantial evidence. First,
Employer contends that the Board’s finding that Employer informed Claimant that
there were no other clients available (F.F. No. 4) is based solely on Claimant’s
testimony, which was refuted by Employer’s witnesses. Second, the Board’s finding
that Claimant received no phone calls or mail from Employer (F.F. No. 5)
capriciously disregards the testimonial and documentary evidence to the contrary.
Employer’s inability to verify Claimant’s phone number during the referee’s hearing
does not support the Board’s finding that Employer never attempted to reach
Claimant. Employer urges that the facts as found by the referee support the
conclusion that Claimant’s actions constituted disqualifying willful misconduct.




       2
         Our review is limited to determining whether necessary findings of fact were supported
by substantial evidence, whether errors of law were committed, or whether constitutional rights
were violated. Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2
(Pa. Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014). In addition, review for “capricious
disregard of material, competent evidence is an appropriate component of appellate consideration
in every case in which such question is properly brought before the Court.” Leon E. Wintermeyer,
Inc. v. Workers’ Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 (Pa. 2002). “A
capricious disregard amounts to a willful or deliberate ignorance of evidence which a reasonable
person would consider important.” Id.
                                               3
                                    III. Discussion
             We begin by noting that the Board, not the referee, is the ultimate fact-
finder in UC matters and is empowered to resolve all conflicts in evidence, witness
credibility, and weight accorded to the evidence. Ductmate Industries, Inc. v.
Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth.
2008). “Questions of credibility and the resolution of evidentiary conflicts are
within the discretion of the [Board] and are not subject to re-evaluation on judicial
review.” Bell v. Unemployment Compensation Board of Review, 921 A.2d 23, 26
n.4 (Pa. Cmwlth. 2007).        “[T]he Board . . . may reject even uncontradicted
testimony if it is deemed not credible or worthy of belief.”                Stockdill v.
Unemployment Compensation Board of Review, 368 A.2d 1341, 1343 (Pa. Cmwlth.
1977). We are bound by the Board’s findings so long as there is substantial evidence
in the record, taken as a whole, supporting those findings. Guthrie v. Unemployment
Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).
             “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 substantial evidence in the record to support the findings actually made . . . .” Wise
v. Unemployment Compensation Board of Review, 111 A.3d 1256, 1262 (Pa.
Cmwlth. 2015); accord Ductmate, 949 A.2d at 342. We examine the record to see
if it contains evidence a reasonable person might find sufficient to support the
Board’s findings. Wise, 111 A.3d at 1262; Ductmate, 949 A.2d at 342. Where the
record contains such evidence, the findings must be upheld, even though the record
may contain conflicting evidence.       Ductmate, 949 A.2d at 342.         Further, the
prevailing party before the Board is entitled to the benefit of all reasonable inferences
drawn from the evidence. Id.


                                           4
            Section 402(e) of the Law provides that an employee will be ineligible
for UC benefits for any week in which his “unemployment is due to his discharge
. . . for willful misconduct.” 43 P.S. §802(e). “Whether conduct rises to the level
of willful misconduct is a question of law to be determined by this Court.” Brown
v. Unemployment Compensation Board of Review, 49 A.3d 933, 937 (Pa. Cmwlth.
2012).
            The employer bears “the burden of proving that it discharged an
employee for willful misconduct.” Adams v. Unemployment Compensation Board
of Review, 56 A.3d 76, 78-79 (Pa. Cmwlth. 2012). This Court has defined willful
misconduct as:

                 (1) wanton and willful disregard of an employer’s
                 interests; (2) deliberate violation of rules; (3)
                 disregard of the standards of behavior which an
                 employer can rightfully expect from an employee; or,
                 (4) negligence showing an intentional disregard of the
                 employer’s interests or the employee’s duties and
                 obligations.

Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 (Pa.
Cmwlth.), appeal denied, 97 A.3d 746 (Pa. 2014).
            Where an employer seeks to deny UC benefits based on a work-rule
violation, the employer must prove the existence of a work rule, the reasonableness
of the rule and the employee’s violation of the rule. Maskerines v. Unemployment
Compensation Board of Review, 13 A.3d 553, 557 (Pa. Cmwlth. 2011). If the
employer meets its burden, the burden then shifts to the claimant to demonstrate
good cause for his actions. Johns, 87 A.3d at 1010.
            This Court has found that absenteeism may be considered willful
misconduct in events of excessive absences, failure to notify the employer in

                                        5
advance of absence, lack of good or adequate cause for the absence, disobedience of
existing company rules, regulations or policy with regard to absenteeism, or
disregard of warnings regarding absenteeism.            Miller v. Unemployment
Compensation Board of Review, 131 A.3d 110, 113 (Pa. Cmwlth. 2015) (citing
Pettey v. Unemployment Compensation Board of Review, 325 A.2d 642, 643
(Pa. Cmwlth. 1974)). Employers have “the right to expect that . . . employees will
attend work when they are scheduled, that they will be on time, and that they will
not leave work early without permission.” Grand Sport Auto Body v. Unemployment
Compensation Board of Review, 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (quoting Fritz
v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth.
1982)).
            Here, Employer contends that it discharged Claimant for his failure to
report to work as scheduled, without notifying Employer, in violation of its
attendance/absenteeism policy. According to Employer, Claimant simply stopped
reporting for work and did not respond to Employer’s calls. However, the Board
found differently. The Board found that Claimant received a call from Employer
advising him that the client no longer wanted his services and that Employer had no
other clients available for Claimant to work. F.F. Nos. 3, 4. Employer told Claimant
that it would contact him when work was available, but Claimant did not receive a
phone call or mail from Employer thereafter. F.F. Nos. 4, 5.
            Employer attacks the Board’s findings as unsupported by the record.
Specifically, Employer asserts that only Employer, not clients, can terminate the
services of a home health aide. Employer also contends that Claimant’s testimony
was directly contradicted by its witnesses, who testified that continuing work was
available for Claimant. Reproduced Record (R.R.) at 9a-10a. However, the Board


                                         6
resolved the conflicts in testimony in favor of Claimant. Claimant credibly testified
that Employer called him and informed him that the client no longer needed his
services, not the client. R.R. at 6a, 17a-18a. Claimant elaborated that the client,
over the years, had expressed her desire for another aide; however, Claimant
continued to serve in this capacity. R.R. at 19a-20a. Claimant testified that, on the
afternoon of January 14, 2015, after he worked for the client earlier that day without
incident, someone from Employer called him and told him his services were no
longer needed because the client requested a substitution.          R.R. at 19a, 21a.
Although Employer denied receiving a substitution request from the client,
Employer’s witness confirmed “clients usually call us and tell us they want another
attendant, and we will schedule them.” R.R. at 9a. Claimant also testified that he
asked for assignment to another client and was advised that Employer did not have
any clients for him to work. R.R. at 18a, 24a. Claimant testified that, after this call,
he did not receive the discharge notice or any voicemails from Employer. R.R. at
18a, 20a, 21a, 24a.      Claimant’s testimony constitutes competent, substantial
evidence to support the Board’s findings of fact. Employer’s arguments to the
contrary amount to little more than an impermissible attack on the credibility
determinations of the factfinder.
             In addition, Employer contends that the Board capriciously disregarded
competent evidence. Specifically, Employer argues that the Board disregarded
Employer’s evidence that it attempted to contact Claimant numerous times between
January 15 and 20, 2015, but received no return phone call. See R.R. at 11a-16a,
32a-34a. The Board considered this evidence but credited Claimant’s testimony that
he did not receive the discharge notice or any voicemail from Employer. R.R. at
24a. The Board noted that Employer sent the discharge notice to an incorrect


                                           7
address.3 The Board also noted Employer’s witness could not identify the phone
number that they used when attempting to reach Claimant. Board Op. at 2; see R.R.
at 17a. It is within the province of the Board to draw reasonable inferences from the
evidence. See Ductmate, 949 A.2d at 342. Where the Board expressly considers
and rejects evidence, such does not constitute a capricious disregard of evidence.
Williams v. Workers’ Compensation Appeal Board (USX Corporation-Fairless
Works), 862 A.2d 137, 145 (Pa. Cmwlth. 2004). Because the Board considered the
evidence presented by both parties and resolved the conflicts in evidence in favor of
Claimant, there was no capricious disregard of evidence.


                                     IV. Conclusion
              Upon review, the Board’s findings are supported by substantial
evidence and support the Board’s conclusion that Employer failed to meet its burden
of proving that it terminated Claimant’s employment for willful misconduct. Thus,
the Board properly concluded that Claimant was not ineligible from receiving
benefits under Section 402(e) of the Law.
              Accordingly, we affirm.




                                          MICHAEL H. WOJCIK, Judge




       3
         Employer sent the termination letter to Claimant at “5119 Hazel Avenue.” R.R. at 9a,
30a. However, Claimant’s address is “5127 Kingsessing Avenue.” R.R. at 2a. This evidence
supports Claimant’s testimony that he never received the discharge notice. R.R. at 24a.
                                             8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Vital Support Home Healthcare,         :
                                       :
                       Petitioner      :
                                       :
                 v.                    : No. 1107 C.D. 2015
                                       :
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :



                                    ORDER


           AND NOW, this 26th day of January, 2018, the order of the
Unemployment Compensation Board of Review, dated June 2, 2015, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
