           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nathaniel J. Johnson,                         :
                            Petitioner        :
                                              :
                     v.                       :    No. 817 C.D. 2015
                                              :    SUBMITTED: October 23, 2015
Unemployment Compensation                     :
Board of Review,                              :
                    Respondent                :



BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE LEADBETTER                                  FILED: December 30, 2015


              Claimant Nathaniel J. Johnson, proceeding pro se, petitions this court
for review of an order of the Unemployment Compensation Board of Review
(Board), which affirmed a referee’s determination that Johnson was ineligible for
benefits under Section 402(e) of the Unemployment Compensation Law (Law)1
because of willful misconduct connected with his work.


    1
      Act of December 5, 1936, Second Ex. Sess., P.L. 1937 (2897), as amended, 43 P.S. §
802(e). Section 402(e) of the Law provides that an employee is ineligible for compensation for
any week in which his unemployment is due to discharge for willful misconduct connected with
his work.
                The Board, which is the ultimate factfinder in cases of unemployment
compensation law,2 found in relevant part as follows. Claimant last worked for the
Philadelphia Housing Authority (Employer) as a full-time, professional painter.
Claimant worked for Employer from June 26, 1998, until October 28, 2014. On
October 23, 2014, Claimant’s foreman spoke to him about his “trip sheet” because
Claimant had not recorded times on it. [Finding of Fact, No. 5]. Claimant stated
that “it was not his ‘f—ing’ job, he was not a ‘f—ing’ secretary” and Claimant
departed the office. [Id., No. 6]. Claimant’s superintendent then went to Claimant
in order “to get him to record his times on the trip sheet.” [Id., No. 7]. Claimant
poked the superintendent with a finger; Claimant also “pushed the superintendent,
used profanity toward the superintendent, and told the superintendent he would
‘f—him up.’” [Id., No. 8]. Other employees restrained Claimant, and the
superintendent called the housing police as well as human resources. The housing
police arrived at Employer’s location and drafted a report.
                Employer maintains a policy with respect to workplace violence that
prohibits any acts or threats of violence against its residents, contractors, visitors or
employees at any time. Violation of this policy may result in termination from
employment. Employer’s policy is contained in the handbook that Claimant was
given when he was hired. Employer discharged Claimant for exhibiting or
engaging in threatening or violent behavior.
                The Department of Labor and Industry determined that Claimant was
not ineligible for benefits under Section 402(e) of the Law because Employer had
not provided information to show that Claimant had violated a workplace rule. On
appeal by Employer, the referee reversed, crediting Employer’s witness that

    2
        See Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383 (Pa. 1985).



                                              2
Claimant had violated Employer’s rule prohibiting violence against its employees
and that Claimant was or should have been aware of this rule. Specifically, the
referee credited Employer’s witness’ testimony that “the incident occurred the
morning of October 23, 2014, the Claimant used profanity toward the foreman and
toward the superintendent, he poked and pushed the superintendent and said, ‘I’ll
f—you up.’” [Referee’s Decision, No. 15-09-D-0535, dated February 19, 2015, at
2]. On appeal by Claimant, the Board affirmed the referee’s decision.3
               On appeal here, Claimant asserts that he had previously reported his
superintendent to human resources for being a harasser and a bully, for calling
Claimant a racial slur, and for denigrating his intelligence, among other insults.
Specific to the incident in question, Claimant also argues that, when he refused to
sign a “write-up” and left the superintendent’s office, the superintendent
confronted him and hurled a racial epithet at him. According to Claimant, no other
employee was present during this incident; thus, testimony from any employee
purporting to be a witness to the exchange between Claimant and his
superintendent was neither reliable nor truthful. In this vein, Claimant points out
that Employer failed to offer any documents or video objectively proving that
Claimant engaged in a deliberate violation of Employer’s policy or rule, which
Claimant maintains he did not do.
               Willful misconduct has been defined to include a deliberate violation
of an employer’s work rule. Navickas v. Unemployment Comp. Bd. of Review, 787

    3
      In doing so, however, the Board altered the referee’s tenth finding of fact to reflect that, as
set forth above, the superintendent called the housing police and human resources but not the
police department and that, when the housing police arrived at the scene, they made a report. The
Board added that the referee could properly credit the testimony of Employer’s witness without
requiring video evidence because the “best evidence” rule does not apply in unemployment
compensation cases. [Board Op., No. B-577938, April 30, 2015, at 1].



                                                 3
A.2d 284, 288 (Pa. 2001). When an employee is discharged for violating a work
rule, the employer must prove the existence of the work rule, the reasonableness of
the rule, the employee’s awareness of the rule, and the fact of its violation.
Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth.
2011). The burden then shifts to the employee to prove that he had good cause for
violating the rule. Id. An employee establishes good cause by showing that his
conduct was justified or reasonable under the circumstances. Id.
            Moreover, whether a claimant’s actions amount to willful misconduct
is a question of law over which we exercise plenary review. Yost v. Unemployment
Comp. Bd. of Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012). In conducting our
review, this Court must examine the evidence in the light most favorable to
Employer, who in this case is the party that prevailed before the Board; we must
also give Employer the benefit of all inferences that can be logically and
reasonably drawn from the testimony. See Chapman, 20 A.3d at 607.
            Despite Claimant’s argument that Employer failed to present any
objective evidence that he deliberately violated a workplace rule, we hold that the
Board properly relied upon the competent, credible testimony of Employer’s
witness to conclude that Claimant acted in a threatening manner. First, as a
technical matter and contrary to Claimant’s assertions, Employer was not required
to introduce into evidence any video that may have existed of the subject incident
because the “best evidence” rule is not generally applicable to administrative
hearings. See DiLucente v. Pa. Prevailing Wage Appeals Bd., 692 A.2d 295, 298
(Pa. Cmwlth. 1997); see also 2 Pa. C.S. § 505 (providing, “Commonwealth
agencies shall not be bound by technical rules of evidence at agency hearings, and
all relevant evidence of reasonably probative value may be received. Reasonable



                                         4
examination and cross-examination shall be permitted.”). Second, Claimant’s
threat to “f—up” his supervisor, which the Board found credible, could not be
reasonably perceived as anything other than a deliberate violation of Employer’s
work rule prohibiting violence against its employees, a rule of which Claimant
should have been aware. See Johns v. Unemployment Compensation Bd. of Review,
87 A.3d 1006, 1010 (Pa. Cmwlth.) (providing that it is well settled that “threats of
harm toward a co-worker or supervisor constitute willful misconduct under the
Law”), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
             Finally, while there is record evidence that Claimant and the
superintendent did not have a good working relationship and that Claimant had
previously reported the superintendent to Employer’s human resources department,
Claimant did not testify at the hearing before the referee or raise before the Board
any assertion that the superintendent hurled racial epithets at him during the
incident leading to his discharge. Claimant did not argue that he was provoked into
threatening the superintendent or that he had good cause for his actions; his
argument is essentially that the superintendent was a harasser and a bully and that
he, rather than Claimant, proved the aggressor in this instance. The Board found
contrary to Claimant’s assessment of the facts, and its findings are substantially
supported by the record evidence, as set forth above.4
             Accordingly, we affirm.

                                         _____________________________________
                                         BONNIE BRIGANCE LEADBETTER,
                                         Judge

    4
      Substantial evidence is the relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. Fera v. Unemployment Comp. Bd. of Review, 407 A.2d 942
(Pa. Cmwlth. 1979).



                                            5
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Nathaniel J. Johnson,                   :
                        Petitioner      :
                                        :
                  v.                    :     No. 817 C.D. 2015
                                        :
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


                                     ORDER


            AND NOW, this 30th day of December, 2015, the order of the
Unemployment Compensation Board of Review is hereby affirmed.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Judge
