           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Margaret Peoples,              :
                               :
                    Petitioner :
                               :
                 v.            : 829 C.D. 2017
                               : Submitted: February 6, 2018
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: March 2, 2018


              Margaret Peoples (Claimant) petitions for review of the May 19, 2017
order of the Unemployment Compensation Board of Review (Board) which affirmed
a referee’s decision and held that Claimant is ineligible for benefits under Section
402(e) of the Unemployment Compensation Law (Law).1 We affirm.
              Claimant was employed by Ross Market, LLC, a/k/a Shop N Save
(Employer) as a part-time deli worker from October 2013 to December 5, 2016. Her
duties included preparing and cooking hot foods sold by Employer. On December


       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S.
§802(e). Section 402(e) provides that 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.
6, 2016, Employer discharged Claimant for consuming food without paying for it.
The local service center determined that Claimant was ineligible for benefits under
Section 402(e) of the Law because she was discharged for dishonesty. Claimant
appealed, and a referee held a hearing on February 13, 2017.
              John Dougherty, Employer’s head manager, testified that Employer’s
policies are set forth in Employer’s handbook, which is given to all new employees.
Dougherty stated that Employer’s food consumption policy specifically prohibits
employees from eating food on the premises without first paying for it at a register.
He added that Employer’s policy governing theft of company property expressly
includes consuming food without first purchasing it and states that the associated
discipline is discharge.2
              Dougherty testified that on December 5, 2016, he observed Claimant
for several minutes eating French fries in the back kitchen. He said that when he
asked Claimant what she was doing, she replied that she was sampling the food
before she sold it to customers. Dougherty stated that he subsequently reviewed
footage from Employer’s surveillance cameras and saw Claimant eating chicken
wings without paying for them on at least one prior occasion. He testified that the
decision to terminate Claimant’s employment was made by Employer’s former head
manager. On cross-examination, Dougherty testified that Employer discharged at
least four deli clerks for the same misconduct, before and after Claimant’s period of
employment.


       2
           Dougherty offered two highlighted pages as evidence of Employer’s policies. Employer
Ex.1. Claimant’s counsel objected to the admission of the pages, noting that they were not a
complete copy of Employer’s handbook. In response to the referee’s questions, Dougherty
testified that he personally removed the two pages from a copy of Employer’s handbook and would
supply the entire handbook if requested. The referee noted Claimant’s ongoing objection but
overruled it.
                                              2
            Melissa Gross, Employer’s front-end manager, testified that she is
responsible for paperwork completed by newly hired employees. She stated that
Claimant received Employer’s handbook and signed an acknowledgement form.
Gross confirmed that the two pages Dougherty submitted were pulled directly from
Employer’s handbook. Gross testified that she also viewed the surveillance film and
saw Claimant taking pepperoni and cheese out of the deli case.
            Claimant acknowledged that she received an employee handbook, but
she testified that Employer had no written policy regarding tasting or sampling the
food. Claimant explained that she tasted the food so she could respond to questions
from customers. She said she had never received training or direction forbidding
employees’ consumption of food and that employees in the deli department had
always sampled the food. According to Claimant, other deli clerks sampled the food
and they were not disciplined in any way.
            The referee credited the testimony of Employer’s witnesses and found
that: the food consumption and theft provisions of Employer’s policy prohibit
employees from consuming food without first paying for it; the policy was in the
handbook that is given to all new employees; Claimant was or should have been
aware of Employer’s policy; and Claimant was discharged for consuming food
without paying for it, in violation of Employer’s policy. Findings of Fact Nos. 2 -
12. The referee concluded that Employer met its burden to prove that Claimant was
discharged for willful misconduct.
            Noting Claimant’s admission that she ate various prepared foods
without paying for it, and rejecting Claimant’s testimony that she did so to benefit
Employer’s customers, the referee concluded that Claimant failed to demonstrate
good cause for her conduct. Accordingly, the referee affirmed the local service


                                         3
center’s determination that Claimant is ineligible for benefits under Section 402(e)
of the Law.
              Claimant appealed to the Board, which affirmed the referee’s decision,
adopting the referee’s findings of fact and conclusions of law. Claimant now appeals
to this Court.3
              Initially we note that while the Law does not define the term willful
misconduct, our courts have defined it as including: a wanton or willful disregard
for an employer’s interests; a deliberate violation of an employer’s rules; a 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).
              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). Where an employer asserts a violation of its rules or policy as willful
misconduct, the employer must establish the existence of a reasonable rule or policy
and the fact of its violation. Lausch 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 claimant 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


       3
          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
Compensation Board of Review, 977 A.2d 12, 16 (Pa. Cmwlth. 2009). Whether or
not an employee’s actions amount to willful misconduct is a question of law subject
to review by this Court. Noland v. Unemployment Compensation Board of Review,
425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
               Claimant argues that Employer did not prove the existence of its work
rule by competent evidence.4 Specifically, Claimant asserts that the two pages
Employer submitted into evidence do not constitute adequate proof of the contents
of Employer’s handbook or that Employer provided a handbook containing those
provisions to Claimant. However, both Dougherty and Gross testified that Employer
has policies prohibiting the consumption of food that has not been paid for; those
policies are included in the handbook given to all new employees; and the pages
submitted into evidence were taken from a copy of Employer’s handbook. Their
testimony was credited by the Board and constitutes substantial competent evidence
to establish the existence of Employer’s policy, the relevant contents of Employer’s
handbook, and Claimant’s receipt of the handbook. Insofar as Claimant relies on
Rule 1002 of the Pennsylvania Rules of Evidence, commonly known as the “Best
Evidence Rule,” to support her contentions, it is well settled that the Pennsylvania
Rules of Evidence are not applicable to hearings conducted before a referee. Section
505 of the Law, 43 P.S. §825; Section 505 of the Administrative Agency Law, 2 Pa.
C.S. §505; Rue v. K-Mart Corp., 713 A.2d 82, 86 (Pa. 1998); Chapman v.
Unemployment Compensation Board of Review, 20 A.3d 603, 610 n.8 (Pa. Cmwlth.
2011).
               Claimant also asserts that the Board erred in determining that her
conduct was willful. Claimant characterizes her conduct as “a sampling of food for


      4
          We have revised the order of Claimant’s arguments.
                                               5
customers’ benefit” and “a single incident of negligence.” Claimant’s brief at 7.
However, in making this argument, Claimant relies on testimony that was expressly
rejected by the Board.
             In unemployment compensation proceedings, the Board is the ultimate
fact-finder, empowered to determine the credibility of witnesses and resolve
conflicts in evidence. Curran v. Unemployment Compensation Board of Review,
752 A.2d 938, 940 (Pa. Cmwlth. 2000).            Because determinations of witness
credibility and the resolution of evidentiary conflicts are within the discretion of the
Board, they 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). Because the Board’s credibility determinations may not be disturbed on
appeal, Claimant’s contentions that her conduct was merely negligent necessarily
fail. Id. For the same reasons, we reject Claimant’s argument that she established
good cause for her conduct, which also relies on her preferred version of the facts.
             After careful review, we conclude that the testimony credited by the
Board constitutes substantial evidence that supports the Board’s findings. Those
findings, in turn, support the Board’s conclusion that Claimant was discharged for
willful misconduct.
       Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                           6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Margaret Peoples,              :
                               :
                    Petitioner :
                               :
                 v.            : 829 C.D. 2017
                               :
Unemployment Compensation      :
Board of Review,               :
                               :
                    Respondent :

                              ORDER


            AND NOW, this 2nd day of March, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                __________________________________
                                MICHAEL H. WOJCIK, Judge
