            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Kohler,                              :
                          Petitioner         :
                                             :
      v.                                     :
                                             :
Unemployment Compensation Board of           :
Review,                                      :
                    Respondent               :      No. 962 C.D. 2015


                                       ORDER

             NOW, April 21, 2016, upon consideration of petitioner’s

application for reconsideration/reargument, the application is granted to the

extent it seeks reconsideration, but reargument is denied.

             The opinion and order filed March 9, 2016 are withdrawn.

             The attached opinion and order are entered.




                                             MARY HANNAH LEAVITT,
                                             President Judge
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Kohler,                              :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Unemployment Compensation                    :
Board of Review,                             :    No. 962 C.D. 2015
                    Respondent               :    Submitted: November 6, 2015



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                       FILED: April 21, 2016

              Richard Kohler (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) May 27, 2015 order
affirming the Referee’s decision denying him UC benefits under Section 402(e) of the
UC Law (Law).2 Claimant presents three issues for this Court’s review: (1) whether
an alcohol test can support a finding of ineligibility for UC benefits based on willful
misconduct; (2) whether the City of Allentown’s (Employer) Street Department’s
Superintendent Mark Shahda’s (Shahda) admission that Claimant was tested because
of his past history precludes a finding of ineligibility for UC benefits under Section




       1
         This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
       2
          Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
402(e.1) of the Law;3 and (3) whether the evidence supports an inference that
Claimant was intoxicated at work. After review, we affirm.
                   Claimant was hired by Employer as a full-time Equipment Operator II in
1989, and was discharged on March 7, 2014. Within the week of the incident that led
to Claimant’s discharge, Claimant had returned to his regular job as a heavy
equipment operator after having served a 12-month suspension of his operator’s
license for a nonwork-related driving under the influence (DUI) conviction.
Employer has a work rule that prohibits reporting to work under the influence of
alcohol or illegal drugs. Employer also has a work rule prohibiting failure to report
an accident that results in property damage. Violation of either rule is grounds for
disciplinary action up to and including discharge. Claimant was aware of these work
rules.
                   On February 27, 2014, Employer assigned Claimant to clear snow with a
dump truck.           While dumping snow into a swimming pool at about 10:00 a.m.,
Claimant’s dump truck snagged a live electrical wire, ripping it from the building
where it was attached and causing an explosion. Some of Claimant’s co-workers
witnessed the accident and reported it by radio. Employer has a policy that allows it
to subject an employee to a breath or blood alcohol test where there is a reasonable
suspicion that there has been alcohol usage.                      One of the bases for reasonable
suspicion is unusual behavior.                Shahda required Claimant be tested because he
believed that the circumstances of the accident as well as the allegation that Claimant
had left the scene without reporting it constituted unusual behavior and, thus,
reasonable suspicion.
                   Claimant was taken to a rehabilitation facility where, at about 12:40
p.m., he took a breathalyzer test that resulted in an alcohol reading of .067.

         3
             43 P.S. § 802(e.1) (relating to failure to submit and/or pass a drug test).


                                                       2
Employer’s risk manager Leonard Lightner, who is familiar with Employer’s testing
procedure, testified that Claimant’s reading was above Employer’s threshold for
intoxication.
                On the day of the accident, Shahda met with Claimant and informed him
of the positive alcohol test and that Claimant was being placed on paid leave pending
an investigation. Claimant stated that he was not aware he had taken down a wire,
and did not respond to the allegation about the positive alcohol test.                     Despite
Employer’s attempts to have Claimant meet and further discuss the allegations,
Claimant did not do so. By March 7, 2014 letter, Shahda terminated Claimant’s
employment for reporting to work under the influence of alcohol, for conduct in
violation of accepted standards of decency or morality, and for failure to report an
accident resulting in property damage.
                Claimant applied for UC benefits. On March 24, 2014, the Allentown
UC Service Center found Claimant ineligible for UC benefits under Section 402(e) of
the Law. Claimant appealed and a Referee hearing was held. On May 19, 2014, the
Referee affirmed the UC Service Center’s determination. Claimant appealed to the
UCBR. On September 11, 2014, the UCBR remanded the matter to the Referee to
“put at issue Section 402(e.1) of the [Law], in addition to Section 402(e) of the Law.”
Certified Record (C.R.) Item No. 16, UCBR Remand Memo. A remand hearing was
held on October 14, 2014. On May 27, 2015, the UCBR affirmed the Referee’s
decision that Claimant was ineligible for UC benefits under Section 402(e) of the
Law. Claimant appealed to this Court.4



       4
         “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
               Claimant first argues that the UCBR erred by finding Claimant ineligible
for UC benefits under Section 402(e) of the Law, instead of deciding the case under
Section 402(e.1) of the Law. Specifically, Claimant contends that because the UCBR
determined that Claimant’s employment was terminated for violating Employer’s
work rule prohibiting being under the influence of alcohol at work, Section 402(e.1)
of the Law is the exclusive applicable section of the Law.
               Initially, Section 402(e.1) of the Law provides that an employee is
ineligible for UC benefits for any week

               [i]n which his unemployment is due to discharge or
               temporary suspension from work due to failure to submit
               and/or pass a drug test conducted pursuant to an employer’s
               established substance abuse policy, provided that the drug
               test is not requested or implemented in violation of the law
               or of a collective bargaining agreement.
43 P.S. § 802(e.1).
               We agree with [Claimant] that it was error for the [UCBR]
               to conclude, in effect, that there is no difference between
               Section 402(e) [of the Law] and Section 402(e.1) [of the
               Law]. Willful misconduct has long been construed to
               include the violation of a work rule, including a work rule
               prohibiting the use of [alcohol5] at the workplace. It must
               be that the Legislature meant to effect some change in the
               Law when it enacted Section 402(e.1) [of the Law]. The
               [UCBR’s] argument would render Section 402(e.1) [of the
               Law] mere surplusage; we are charged, however, to give
               effect to all the language in a statute.

UGI Utils., Inc. v. Unemployment Comp. Bd. of Review, 851 A.2d 240, 245 (Pa.
Cmwlth. 2004) (citation omitted). However, “[a]lthough the [UCBR] and Referee
focused upon Section 402(e) [of the Law], we may affirm an agency’s decision ‘on

       5
        This Court has held that “the legislature intended to include alcohol in Section 402(e.1) [of
the Law] as one of the common subjects of a substance abuse policy.” Dillon v. Unemployment
Comp. Bd. of Review, 68 A.3d 1054, 1059 (Pa. Cmwlth. 2013).
                                                 4
other grounds where grounds for affirmance exist.’” Turner v. Unemployment Comp.
Bd. of Review, 899 A.2d 381, 385 (Pa. Cmwlth. 2006) (quoting Kutnyak v. Dep’t of
Corr., 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000)). “[T]o render an employee
ineligible for unemployment compensation benefits under Section 402(e.1) [of the
Law], the employer must establish it adopted a substance abuse policy and that the
employee failed a test pursuant to that policy.” Turner, 899 A.2d at 384.
             Here, Employer’s drug and alcohol policy (Employer’s Policy) was
admitted into evidence at the Referee hearing.        Employer’s Policy provides in
relevant part:
             B. REASONABLE SUSPICION TESTING
             All . . . employees shall be subject to . . . breath or blood
             alcohol testing for the presence of alcohol where there is
             reasonable suspicion to believe based on specific and
             immediate physical, behavioral or performance
             indicate[d] probable . . . alcohol use. Employees shall not
             consume or use alcohol . . . while off duty to the extent that
             evidence of such use is apparent when reporting for duty, or
             to the extent that the employee’s ability to perform his/her
             duty is impaired. . . . Symptoms which indicate
             reasonable suspicion include but are not limited to the
             following:
             ....
           Unusual behavior, mood variations or deteriorating
            performance
             ....
           Insubordination

Reproduced Record (R.R.) at 62a (emphasis added); Ex. E-1. At the October 14,
2014 Referee hearing, Shahda testified:
             R[eferee] So did you personally observe any behavior
             that indicated [Claimant] was under the influence of
             alcohol?

                                           5
EW1 [Shahda] . . . [T]he incidents that took place there led
me to believe that there was reasonable suspicion involved
with me sending him for a test.
R     Okay. What led you to believe there was reasonable
suspicion?
EW1 Just a few days prior to the incident, his driver’s
license was just reinstated for a DUI. Taking down a live
electrical wire and just not, failing to report it and not report
it to anybody, led me to believe that he had also [sic]
something to hide as well.
....
EL [Employer’s Lawyer] Yes. The issue here, I just want to
preface that there’s an issue as was stated by the Referee is
why did we send him. You’ve testified you had no personal
contact with him. So I’m going to ask you what was in
your mind at the time that set you, where you decided I
have to send this guy for a drug test? Okay. So you already
answered two things. You said the live wire and you said
the recent return to work from a DUI. Were there any other
things that were on your mind at the time?
EW1 Yes. [Claimant] also was observed getting out of the
truck, removing the wire, the live electrical wire off the
truck, throwing it to the ground, looking around, and got in
his truck and drove away.
....
EL     Can you tell us where you got the information from?
EW1 I received that information from the Par[k]s
Superintendent, which was Rick Goldsmith. I got the
phone call from him saying that his employees observed
[Claimant] getting out of the truck, removing the wire off
the truck, throwing it on the ground. [Claimant] then
looked around to see who was in the area, got in the truck
and proceeded to drive away. After gathering all that
information I followed up with one of my Supervisors. I
asked him to run a GPS report to verify whether or not that
was [Claimant] at the time of the incident. So with all that,
after gathering all that information [and] after we verified it
was [Claimant,] I had reasonable suspicion that he had

                               6
               something to hide. He did – not only did he jeopardize his
               own safety but he jeopardized the safety of the public.
               Those are all duties that I’m obligated as Bureau Manager
               to enforce, to make sure nobody’s safety is being
               jeopardized or I could also, I also have to provide a safe
               work environment for my employees as well.

R.R. at 12-14.
               This testimony supports the conclusion that Employer had reasonable
suspicion to believe there had been alcohol usage by Claimant. As a result of
Employer’s reasonable suspicion, Claimant was given a breathalyzer.6 Pursuant to
Employer’s Policy .02g/210l is the threshold alcohol level. R.R. at 66a; Ex. E-1.
Claimant’s alcohol level was .057g/210l. C.R. Item No. 3, Ex. E-8. Thus, Claimant
failed his alcohol test. Accordingly, because Employer had an established substance
abuse policy and Claimant failed a test in accordance with Employer’s policy,
Claimant is ineligible for UC benefits under Section 402(e.1) of the Law. Turner.
               Claimant next contends that Shahda’s admission that Claimant was
tested because of his past history precludes a finding of ineligibility of UC benefits
under Section 402(e.1) of the Law. We disagree.
               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.




       6
          Claimant was given three tests because the policy requires two tests and during the second
test Claimant’s breath was undetectable, requiring a third test. The results of the last test given are
the results Employer uses to determine an employee’s alcohol level. See R.R. at 51a.
                                                  7
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, in this
             case, the Employer, giving that party the benefit of any
             inferences which can logically and reasonably be drawn
             from the evidence.

Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth.
1999).
             Here, the UCBR made the following findings of fact:
             10. [E]mployer has a policy that allows it to subject an
             employee to breath or blood alcohol testing for the presence
             of alcohol where there is reasonable suspicion to believe
             that there has been alcohol usage.
             11. One of the bases for reasonable suspicion is ‘unusual
             behavior’ by the employee.
             12. [Shahda] made the decision to have [C]laimant tested
             because he believed that the circumstances of the accident
             and the allegation that [C]laimant had left the scene without
             reporting it all indicated ‘unusual behavior.’

UCBR Dec. at 3; R.R. at 3a. Shahda’s testimony, as recited above, is relevant
evidence to support the conclusion that Claimant was tested because Shahda had
“reasonable suspicion to believe based on specific and immediate physical,
behavioral or performance . . . [that Claimant] probabl[y] . . . [partook in] alcohol
us[ag]e.” R.R. at 62a; Ex. E-1. Consequently, since the UCBR’s findings of fact are
supported by substantial evidence, Shahda’s additional testimony regarding
Claimant’s past history is irrelevant.



                                          8
            Lastly, Claimant asserts that the evidence does not support an inference
that Claimant was intoxicated at work because “there was no foundation for the test
results, [] no unit explained for the number reported, and no subjective evidence of
alcohol intoxication was [admitted] into evidence.” Claimant Br. at 18 (uppercase
and bold emphasis omitted). We disagree.
            First, Employer’s Policy explains:
            ALCOHOL TESTING
            Threshold
            .02 Alcohol Concentration*
            *Alcohol concentration refers to the concentration of
            alcohol in a person’s . . . breath. When expressed as a
            percentage, it means . . . grams of alcohol per 210 liters of
            breath.

R.R. at 66a (emphasis added); Ex. E-1. Moreover, Claimant’s Alcohol Testing Form
(ATF) admitted into evidence reflects that on “2/27/14” at “12:40” Claimant’s
“G/210L” was “.067”. C.R. Item No. 3, Ex. E-8, Test No. 224. On “2/27/14” at
“13:04” Claimant’s “G/210L” was “.000 BLANK”. C.R. Item No. 3, Ex. E-8 Test
No. 225. On “2/27/14” at “15:08” Claimant’s “G/210L” was “.057”. C.R. Item No.
3, Ex. E-8 Test No. 226.      Clearly, Employer’s Policy and Claimant’s ATF is
substantial evidence that Claimant’s alcohol level was over Employer’s threshold
limit. Therefore, as Claimant failed an alcohol test in accordance with Employer’s
Policy, Claimant is ineligible for UC benefits under Section 402(e.1) of the Law.
            For all of the above reasons, the UCBR’s order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard Kohler,                       :
                       Petitioner     :
                                      :
                  v.                  :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 962 C.D. 2015
                    Respondent        :


                                    ORDER

           AND NOW, this 21st day of April, 2016, the Unemployment
Compensation Board of Review’s May 27, 2015 order is affirmed.


                                    ___________________________
                                    ANNE E. COVEY, Judge
