IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Animal Hospital of Gilbertville,
:
Petitioner
: :
v.
:
No. 2099 C.D. 2001
:
Submitted: December 21, 2001
Unemployment Compensation
:
Board of Review,
:
Respondent
:
BEFORE: HONORABLE JOSEPH T. DOYLE, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE McCLOSKEY
FILED: February 1, 2002
The Animal Hospital of Gilbertville (Employer) petitions for review
of an order of the Unemployment Compensation Board of Review (Board),
reversing the decision of a referee and granting benefits to Nicholas Tiberio
(Claimant). The referee had previously concluded that Claimant was ineligible for
unemployment compensation benefits pursuant to Section 402(e) of the
Unemployment Compensation Law (UC Law).
We affirm.
Employer employed Claimant as a veterinary practice manager
starting on January 2, 2000. On January 31, 2000, one of the doctors in the
veterinary practice resigned. Dr. Jon Monschein, a veterinarian and owner of the
practice, instructed Claimant to place an advertisement and a listing with AVMA
Placement Service (AVMA) to find a replacement for the doctor who resigned.
Claimant contacted AVMA regarding the placement of an advertisement. On or
about February 16, 2000, a check was written to AVMA.
On March 1, 2000, Dr. Monschein instructed Claimant to contact
AVMA regarding the status of the advertisement and listing. Claimant later
informed Dr. Monschein that he had contacted AVMA and that AVMA had
received the necessary paperwork.
Dr. Monschein later contacted AVMA directly
regarding the status of the advertisement and listing. However, AVMA informed
Dr. Monschein that it was not in possession of any paperwork regarding the same.
Dr. Monschein then asked Claimant to produce a copy of the cancelled check sent
to AVMA. Claimant informed Dr. Monschein that there was no cancelled check.
Employer thereafter discharged Claimant for dishonesty.
Approximately one year after his termination, Claimant filed a claim
for benefits with his local job center. The local job center granted Claimant
benefits. Employer appealed and the case was assigned to an unemployment
compensation referee. The referee conducted a hearing on June 20, 2001, and later
issued a decision reversing the determination of the local job center and denying
Claimant benefits. The referee concluded that Claimant was in a position of
responsibility and trust with Employer and that he demonstrated a disregard of
Employer's interests. Hence, the referee concluded that Claimant was ineligible
for benefits under Section 402(e) of the UC Law.
Claimant then appealed to the Board and the Board reversed the
referee's decision, concluding that Claimant was not ineligible for benefits under
Section 402(e). In rendering its decision, the Board concluded that the only
evidence offered by Employer was hearsay evidence and, hence, Employer failed
to meet its burden of establishing that Claimant was discharged for willful
misconduct. The Board noted that Claimant followed Employer's instructions to
mail an advertisement and payment to AVMA and that once such actions were
taken, the circumstances were beyond Claimant's control. The Board also noted
that it was not clear what happened to the check. Nevertheless, the Board
indicated that Claimant's actions could not be deemed willful misconduct.
Employer now appeals to this Court.
On appeal, Employer argues that the Board erred in reversing the
decision of the referee. More specifically, Employer argues that the Board's
decision is not supported by substantial evidence and that the Board erred as a
matter of law in excluding certain evidence and failing to address relevant issues of
dishonesty. We disagree.
We have recently addressed the authority conferred upon the Board in
Kelly v. Unemployment Compensation Board of Review, 776 A.2d 331 (Pa.
Cmwlth. 2001), wherein we stated as follows:
In unemployment compensation proceedings, the Board
is the ultimate factfinder and is empowered to resolve
conflicts in the evidence and to determine the credibility
of witnesses. Findings made by the Board are conclusive
and binding on appeal if the record, when examined as a
whole, contains substantial evidence to support those
findings.
Kelly, 776 A.2d at 336.
Nevertheless, whether or not an employee's actions amount to willful
misconduct is a question of law subject to review by this Court. Nolan v.
Unemployment Compensation Board of Review, 425 A.2d 1203 (Pa. Cmwlth.
1981). In our review, "[w]e must look at all of the circumstances, including the
employee's noncompliance with the employer's directives and the reasons for the
noncompliance." Rossi v. Pennsylvania Unemployment Compensation Board of
Review, 544 Pa. 261, 266, 676 A.2d 194, 197 (1996).
Moreover, the burden is on an employer to prove that a discharged
employee was guilty of willful misconduct. Gillins v. Unemployment
Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993). The term
willful misconduct is not defined in the UC Law. However, this Court has defined
willful misconduct as an act of wanton or willful disregard of the employer's
interests, a deliberate violation of the employer's rules, a disregard of the standards
of behavior which the employer has a right to expect of an employee or negligence
indicating an intentional disregard of the employer's interests or the employee's
duties and obligations to the employer. See Arnold v. Unemployment
Compensation Board of Review, 703 A.2d 582 (Pa. Cmwlth. 1997).
In this case, the Board accepted the testimony of Claimant as credible
and rejected the testimony presented by Employer. Such a determination is within
the purview of the Board. Kelly. At the hearing before the referee, Claimant
confirmed that Dr. Monschein approached him regarding the placement of an
advertisement for a new veterinary doctor. Claimant indicated that he did what he
was instructed to do by Dr. Monschein, i.e., place an advertisement and listing with
AVMA.
Claimant did recall a conversation he had with Dr. Monschein in March
of 2000. Claimant indicated that in the course of this conversation, Dr. Monschein
questioned him regarding the status of the advertisement and listing. Claimant also
recalled informing Dr. Monschein that all the paperwork was in place. However,
Claimant disputed ever telling Dr. Monschein that "the check had been cleared."
(R.R. at 13a).
At the referee's hearing, Dr. Monschein and Claimant engaged in the following
colloquy:
EW1 Yes, I do. You could've made inferences, Nick. Are you saying
that we didn't have the conversation on or around March 1 that I
asked you to check into this? You do not have any recollection of
me asking you on or around March of 2000 to please look into the
status of this?
C You asked me the status of all inquiries for looking for a doctor.
EW1 Yes.
C That is correct.
EW1 So you remember having that conversation?
C Yes
EW1 And do you remember your response later that day, that everything
was in place, all the paperwork was in place, and that `the check had
been cleared,' is your exact words?
C No, I do not. Not the check was cleared.
EW1 That was your way of saying to me that everything was in place. I
mean, being as...
C Well, that's what you just admitted.
EW1 Right.
C That it's my way of saying it. It's not what I said.
(R.R. at 12a-13a).
In an attempt to establish that Claimant lied regarding the status of the
advertisement and listing with AVMA, Dr. Monschein testified that he later
checked with AVMA personally and that they informed him that they had not
received any paperwork for the same. However, Employer failed to present any
evidence or testimony from someone at AVMA to corroborate the same. Hence,
the Board refused to make any findings regarding Dr. Monschein's conversation
with AVMA. Instead, the Board properly characterized such testimony as
uncorroborated hearsay.
Based upon the credible testimony of Claimant and the lack of any
corroborating evidence from Employer supporting Dr. Monschein's hearsay
statements, the Board found that Claimant's action did not rise to the level of
willful misconduct. This finding is supported by substantial evidence in the
record. Thus, we cannot say that the Board erred in reversing the decision of the
referee.
Accordingly, the order of the Board is affirmed.
JOSEPH F. McCLOSKEY, Senior Judge