           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Minuteman Spill Response, Inc.,               :
                 Petitioner                   :
                                              :
              v.                              :
                                              :
Unemployment Compensation                     :
Board of Review,                              :   No. 42 C.D. 2015
                 Respondent                   :   Submitted: July 17, 2015

BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: August 11, 2015
              Minuteman Spill Response, Inc. (Employer), challenges the order of
the Unemployment Compensation Board of Review (Board) that reversed the
Referee’s determination that Curtis Tripp (Claimant)1 was ineligible for
unemployment compensation benefits under Section 402(e) of the Unemployment
Compensation Law (Law).2


              The facts, as found by the Board are as follows:3

              1. The Claimant was last employed by [Employer], a
              service provider for the natural gas well industries, for a
              period of time from May 31, 2013 through July 25, 2014,
              at $16.00 per hour.

1
  Apparently, Claimant appeared pro se before the UC Referee and Board.
2
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
3
  The Board uses “claimant” and “employer” rather than “Claimant” and “Employer” throughout
its opinion. For the sake of presentation, we will use Claimant and Employer when quoting from
the Board’s opinion without noting each instance of its use.
2. The Employer’s policy provides that employees are to
keep the Employer’s information confidential and to act
in a professional manner.

3. The Claimant was aware of this policy.

4. The Claimant had initially been employed as a driver
and because of some medical issues; [sic] the Claimant
for the final month of his employment was working as a
dispatcher on light duty.

5. Another dispatcher overheard the Claimant making
remarks that were allegedly disparaging of the Employer.

6. The Claimant allegedly told drivers that he used to
work with that the Employer was not going to be around
[and] that the Employer was going broke.

7. The client’s employees then reported those assertions
to the Employer.

8. The Employer’s human resources director then
conducted an investigation and part of that investigation
was an interview with the Claimant.

9. The Claimant denied that he had made disparaging
remarks to any other employees of the company or to
clients of the Employer.

10. The Claimant did admit that he had some discussions
with a fellow driver trying to convince him to stay on
with the Employer.

11. Those discussions covered questions as to whether or
not the Employer would be financially solvent or in fact
would stay in business.

12. The Claimant was aware that there was much made
publicly about the Employer and its continued existence.

13. The Claimant was considering bringing a lawsuit
against one of the Employer’s clients, but did not discuss
this in the presence of the Employer’s witness.

                            2
              14. The Claimant was discharged for allegedly making
              disparaging remarks to [sic] the Employer.

Board’s Decision, December 17, 2014, (Board Decision), Findings of Fact (F.F.)
Nos. 1-14 at 1-2.


              The Board reasoned:

              The Board resolves the conflicts in the testimony, in
              relevant part, in favor of the Claimant and finds his
              testimony to be credible.
              ….
              Since the Claimant was discharged, the Employer has the
              burden of establishing that the discharge was for willful
              misconduct in connection with his work…The Employer
              has not met this burden.

              The Claimant disputes the allegations by the Employer
              that he spoke to many employees in a disparaging way
              about the employer or a pending lawsuit that he was
              considering against one of the primary clients of the
              Employer…[T]he Claimant indicated at no time did he
              discuss that in the presence of the Employer witness.
              The Claimant then indicated that he only had one
              conversation with another driver attempting to persuade
              the driver from leaving that employment.
Board’s Decision at 2-3.


              Employer contends4 that the Board erred when it found Claimant was
not ineligible for benefits under Section 402(e) of the Law and that the Board


4
  In unemployment compensation cases, this Court’s review is to determine whether the order of
the Board is supported by substantial evidence, whether the adjudication was in accordance with
the law, and whether constitutional rights were violated. 2 Pa. C.S. § 704; Devine v.
Unemployment Compensation Review Board, 101 A.3d 1235, 1237 (Pa. Cmwlth. 2014).



                                              3
failed to provide substantial evidence to support its decision to award benefits to
the Claimant.

I. Whether Claimant Was Ineligible For Benefits Under Section 402(e) of the
                                  Law?
            Section 402(e) of the Law, 43 P.S. § 802(e), provides that an
employee shall be ineligible for compensation for any week “in which his
unemployment is due to his discharge or temporary suspension from work for
willful misconduct connected with his work.” “Willful misconduct” has been
defined as the wanton and willful disregard of an employer’s interests, deliberate
violation of rules, disregard of the standards of behavior which an employer can
rightfully expect form an employee, or negligence showing an intentional disregard
of the employee’s duties and obligations. Johns v. Unemployment Compensation
Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). The employer bears
the initial burden of establishing a claimant engaged in willful misconduct. Id.
Where a violation of the employer’s work rule is alleged as the basis for
termination, the employer must show that the rule existed, the rule was reasonable,
and claimant was aware of the rule and violated it. Oyetayo v. Unemployment
Compensation Board of Review, 110 A.3d 1117, 1121 (Pa. Cmwlth. 2015). If the
employer makes that showing, then the burden shifts to the claimant to show good
cause. Id. Whether a claimant’s actions constitute willful misconduct is a question
of law which is fully reviewable by this Court on appeal. Johns, 87 A.3d at 1009.


            Claimant testified that he was questioned by his supervisor, Lisa
Stanchick, about discussing company business over the phone in possible violation
of Employer’s rules. Claimant testified:


                                           4
            I told her Chris Bowers is the one I was speaking with on
            the phone…When I worked with Chris he was a very
            good driver… And he had some concerns about the
            company’s future… So I simply told him Chris from
            what I understand we’re going to be all right…We got
            people [who have] been here a long time, should be okay
            no matter what happens with [the owner of Employer
            company’s] charges…I said so I would wait, just hang in
            there…
Notes of Testimony, October 2, 2014, (N.T.) at 33.


            Melanie Holub, who worked with Claimant, testified on behalf of
Employer regarding Claimant’s activities:

            [H]e had explained to me how he was going to sue EQT
            which is one of our largest customers. It’s known to
            everybody in the company if we’d lose EQT we’d be in
            real trouble.
            ….
            When we’re supposed to be calling them for their
            schedule and tell them what trucks to take to what rigs he
            would indulge in conversation as to trying to build his
            case, would they support him if he went up against
            EQT…
            ….
            [It] was no secret he didn’t want to be there.
            ….
            He was telling the driver that he used to work with that
            they were not going to be around, [that Employer] was
            going under.
N.T. at 24-26.


             The Board noted the existence of Employer’s rule requiring
employees to keep the Employer’s information confidential and to act in a
professional manner. Board Opinion, F.F. No. 2, at 1. The Claimant in this



                                        5
controversy was employed as a dispatcher and allegedly discussed Employer’s
information over the phone. The dispute between Claimant and Employer was the
nature and extent of those discussions.


             Essentially, this controversy revolves around credibility. The Board is
empowered to make credibility determinations and may accept or reject the
testimony of any witness in whole or in part. Oyetayo, 110 A.3d at 1121. The
Board found the Claimant to be credible and believed his version of the events and
his explanation that he “only had one conversation with another driver attempting
to persuade the driver from leaving that employment.” Board Opinion at 3. The
Employer in this controversy established that there was the existence of the
requirement not to reveal Employer’s confidential information and to act in a
professional manner, but was unable to establish that the Claimant violated this
requirement. The Board concluded that Claimant was not ineligible for benefits
under Section 402(e) of the Law, 43 P.S. § 802(e).


       II. Whether the Board Erred When It Reversed the UC Referee?
             Employer contends that the Board failed to explain its reasons for
rejecting the findings and the decision of the UC Referee, without addressing the
testimony of the Employer’s fact witness or explaining why it made contrary
credibility determinations.


             This Court recently stated the following concerning capricious
disregard of evidence in unemployment compensation cases:

             A capricious disregard of evidence occurs where the fact
             finder willfully and deliberately disregards competent


                                          6
              and relevant evidence that one of ordinary intelligence
              could not have possibly have avoided in reaching a
              result.
              ….
              The standard announced in Wintermyer[5] applies
              whether one or both parties present evidence, and thus,
              overruled this Court’s earlier-announced paradigm that
              appellate review for capricious disregard of evidence was
              limited to the circumstance where the burdened party was
              the only party to present evidence and did not prevail.

              Disturbing an agency’s adjudication for a capricious
              disregard of evidence is appropriate only where the
              fact-finder has refused to resolve conflicts in the
              evidence, has not made essential credibility
              determinations or has completely ignored overwhelming
              evidence without comment.
              ….
              An appellate court conducting a review for capricious
              disregard of material, competent evidence may not
              reweigh the evidence or make credibility determinations.
Wise v. Unemployment Compensation Review Board, 111 A.3d 1256, 1262-1263
(Pa. Cmwlth. 2015). (Citations omitted and emphasis added.)


              The Board in this case made essential credibility determinations when
it found Claimant to be credible, resolved conflicts in the evidence, and it noted the
evidence presented. This Court finds that the Board did not capriciously disregard
the evidence.




5
  Leon E. Wintermyer v. Worker’s Compensation Appeal Board (Marlowe), 812 A.2d 478 (Pa.
2002). The Board asserts in its brief that the “capricious disregard” standard does not apply in
this controversy because Wintermyer was a plurality opinion. This Court disagrees with that
assessment of the law.



                                               7
Accordingly, the order of the Board is affirmed.




                         ____________________________
                         BERNARD L. McGINLEY, Judge




                            8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Minuteman Spill Response, Inc.,     :
                 Petitioner         :
                                    :
             v.                     :
                                    :
Unemployment Compensation           :
Board of Review,                    :   No. 42 C.D. 2015
                 Respondent         :


                                  ORDER

             AND NOW, this 11th day of August, 2015, the order of the
Unemployment Compensation Board of Review in the above-captioned matter is
affirmed.




                                    ____________________________
                                    BERNARD L. McGINLEY, Judge
