IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Walter R. Becroft,
:
Petitioner
: :
v.
:
No. 1570 C.D. 2001
:
Submitted: December 28, 2001
Unemployment Compensation
:
Board of Review,
:
Respondent
:
BEFORE: HONORABLE DAN PELLEGRINI, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Judge
HONORABLE JIM FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FRIEDMAN
FILED: February 8, 2002
Walter R. Becroft (Claimant) petitions for review of the June 7, 2001
order of the Unemployment Compensation Board of Review (UCBR) affirming a
referee's decision to deny Claimant unemployment compensation benefits on the
basis that he was dismissed from his employment for willful misconduct under
section 402(e) of the Unemployment Compensation Law (Law).
We affirm.
Claimant worked as a manager-in-training for Express Car & Truck
Rental, Inc. (Employer) from January 28, 2000 to November 2, 2000, at a final
weekly salary of $375.00 plus a "draw against" bonus, for a total salary of $500.00
per week. (UCBR's Findings of Fact, No. 1.) Employer has a policy that prohibits
an employee from falsifying any invoice or document. Further, placing false or
misleading information on documents or knowingly processing such documents is
grounds for disciplinary action up to and including discharge. (UCBR's Findings
of Fact, No. 3.) Employer's policy provides that if an employee needs to alter or
correct important information on documents, the employee is required to bring the
information to the attention of a supervisor before making any changes. (UCBR's
Findings of Fact, No. 4.) Claimant was aware of Employer's policies. (UCBR's
Findings of Fact, No. 5.)
At the time of hire, Employer trained Claimant in upselling vehicles.
(UCBR's Findings of Fact, No. 2.) At the end of October of 2000, Employer
learned that Claimant had been falsifying his upselling records in order to increase
his bonus money and confronted Claimant with the falsified upselling records.
(UCBR's Findings of Fact, Nos. 6-7.) Claimant admitted to falsifying the records
in order to obtain more bonus money, without informing Employer that a
supervisor had permitted him to make these changes. (UCBR's Findings of Fact,
Nos. 8-9.) On October 2, 2000, Employer discharged Claimant for violating the
policy regarding falsification of documents. (UCBR's Findings of Fact, No. 10.)
Following his discharge, Claimant applied for unemployment
compensation benefits, but the Philadelphia UC Service Center (UC Service
Center) denied the benefits. (O.R., Item No. 2.) Claimant appealed, and a hearing
was held before a referee on January 30, 2001. Neither Claimant nor his counsel
appeared at the hearing because they believed the hearing had been postponed.
(UCBR's Findings of Fact, No. 11.) Employer did appear and presented evidence.
Following the hearing, the referee affirmed the determination of the UC Service
Center to deny Claimant benefits.
Claimant filed a petition with the UCBR for a new hearing. The
UCBR granted the petition, remanding the case to a referee to act as a hearing
officer for the UCBR. At the second hearing, held on April 4, 2001, Claimant
appeared and presented evidence, but Employer did not appear.
Following the April 4, 2001 hearing, the UCBR affirmed the
determination of the referee to deny Claimant benefits. The UCBR concluded that
Claimant had good cause for his failure to appear at the first hearing before the
referee, allowing the UCBR to consider Claimant's testimony from the second
hearing in reaching its decision. However, the UCBR resolved the conflict in the
testimony in favor of Employer. The UCBR further determined that, in light of the
fact that Claimant admitted that he falsified records in order to receive money to
which he was not entitled, Claimant did not have good cause for his violation of
Employer's policies. Thus, the UCBR agreed that Claimant was ineligible for
benefits under section 402(e) of the Law.
Claimant now petitions this court for review of the UCBR's order.
Claimant argues that the UCBR's consideration of the testimony of Employer's
witness, which was not subject to cross-examination, violated Claimant's due
process rights and the UCBR's own procedural rules. We disagree.
In an unemployment compensation proceeding, "[t]he issuance of
subpoenas to compel the attendance of witnesses . . . may be obtained on
application to the [UCBR], referee or at any local employment office. . . ." 34 Pa.
Code §101.31. Referees have the power to issue summons or subpoenas to compel
the attendance of witnesses at hearings pursuant to section 506 of the Law, 43 P.S.
§826. Farmland Industries, Inc. v. Unemployment Compensation Board of
Review, 478 A.2d 524 (Pa. Cmwlth. 1984). However, a party must request that a
subpoena be issued; the referee has no affirmative duty to subpoena witnesses
absent a timely application from the proper party. Id.
Here, in order to cross-examine Employer's witness, Claimant should
have applied to obtain a subpoena to compel the witness to appear at the second
hearing, especially when Employer had already appeared at the first hearing and
presented its case. Claimant failed to do so, and, thus, he cannot now complain
that his rights were violated when Employer did not appear for cross-examination.
Claimant next argues that the UCBR erred in failing to acknowledge
the evidence Claimant submitted to contradict the testimony of Employer's
witness. Again, we disagree.
In an unemployment compensation proceeding, the UCBR is the
ultimate fact-finder and is free to resolve conflicts in evidence and to determine the
credibility of witnesses. Keystone Coca-Cola Bottling Corporation v.
Unemployment Compensation Board of Review, 693 A.2d 637 (Pa. Cmwlth.
1997), appeal denied, 553 Pa. 684, 717 A.2d 535 (1998). Thus, the UCBR is free
to believe some, all or none of the evidence presented. See id. The UCBR's
findings are conclusive on appeal so long as the record, taken as a whole, contains
substantial evidence to support those findings. Peak v. Unemployment
Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985). Substantial
evidence is "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Id. at 275, 501 A.2d at 1387 (quoting Murphy v.
Department of Public Welfare, 480 A.2d 382, 386 (Pa. Cmwlth. 1984)). The mere
fact that certain evidence is not discussed in the UCBR's opinion does not mean
that the UCBR failed to consider that evidence.
In this case, Human Resources Director for Employer, John Yoast,
testified that Employer's audits show that Claimant improperly changed invoices
for rental agreements to inflate his bonus. (N.T. of 1/30/01 at 4.) Then, Yoast
explained the computer printouts of the audit, which showed Claimant's employee
number and the incorrect entries Claimant made, such as entering in a $69.99 rate
for a $29.99 compact car, giving himself a percentage of the $40.00 price
difference. (N.T. of 1/30/01 at 5-6; Employer's Ex. 1.) Although Claimant
testified that he never admitted to upselling and entered data into the computer as
his supervisor instructed, the UCBR is free to resolve any conflicts in testimony in
favor of Employer.
Because Yoast's testimony, accepted by the UCBR, provides
substantial evidence to support the UCBR's finding that Claimant violated
Employer's document falsification policy, we must accept that finding as
conclusive. Due to this violation of Employer's policy, the UCBR properly
concluded that Claimant's action constituted willful misconduct,
and he remained ineligible for benefits.
_____________________________ ROCHELLE S. FRIEDMAN, Judge