IN THE COMMONWEALTH COURT OF PENNSYLVANIA 
DORIS A. BROADUS, : 
Petitioner ::
v. : NO. 1001 C.D. 1998 
: SUBMITTED: August 14, 1998 
UNEMPLOYMENT COMPENSATION: 
BOARD OF REVIEW, : 
Respondent : 
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge 
HONORABLE DORIS A. SMITH, Judge 
HONORABLE JOSEPH F. McCLOSKEY, Senior Judge 
OPINION BY JUDGE SMITH FILED: November 25, 1998 

Doris A. Broadus (Claimant) appeals the order of the Unemployment 
Compensation Board of Review (Board) that reversed the referee’s decision 
granting her unemployment compensation benefits. The Board reasoned that 
failing a drug test in violation of the “Last Chance Agreement” (Agreement) 
which Claimant signed with USX Clairton Works (Employer) constituted willful 
misconduct rendering Claimant ineligible for benefits under Section 402(e) of the 
Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. 
Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e) (willful misconduct). 
Claimant questions whether the Board’s order reversing the referee is supported by 
substantial, competent evidence; whether the laboratory drug test reports should be 
considered hearsay; and whether Employer’s failure to circulate a document used 
in telephonic testimony renders that testimony inadmissible.
 
Claimant was employed as a full-time phosam attendant1 for 23 years; 
her employment ended on November 6, 1997. Claimant was first suspended in 
September 1996 after testing positive for cocaine, and as a condition of her 
reinstatement, Claimant promised under the Agreement entered into in September 
1996 that she would abstain from using any drugs or alcohol and would submit to 
random drug testing by Employer. Employer tested Claimant on two sets of 
occasions. The first set of tests occurred on July 25 and August 1, 1997 (Test One) 
and the second set on October 24 and November 6, 1997 (Test Two). Testing was 
performed by collecting hair samples from Claimant and sending them to 
Psychemedics Corporation, a laboratory in Culver City, California. 
The Test One report was not admitted as an exhibit into the record 
although reference was made to its negative result; Employer’s witnesses 
principally testified about the Test Two results. Test Two showed that there was 
cocaine usage. In the October 24, 1997 test the entire length of the hair sample 
was tested; in the November 6, 1997 test the hair sample was cut into three 
segments, each of which was tested. According to Employer, the results of the 
November 6th test were as follows: negative at the one-third segment located 
closest to Claimant’s scalp; insufficient hair to complete a test on the middle onethird 
segment; and positive at the one-third segment located one inch from 
Claimant’s scalp. Employer presented testimony that hair sample drug tests are 
based on the assumption that human hair grows at a rate of one-half inch per 
month. On November 6, 1997, Claimant was terminated from her employment 
because of the test results. 

Claimant applied for unemployment compensation benefits on 
November 30, 1997 at her local Job Center. The Job Center determined that 
Claimant’s behavior constituted willful misconduct and denied her benefits under 
Section 402(e) of the Law. Claimant filed a timely appeal. In a decision dated 
January 27, 1998, the referee reversed the Job Center and held that Claimant’s 
behavior did not constitute willful misconduct. The referee found that “[t]esting of 
the claimant’s hair samples in October and November 1997 have [sic] not 
determined when the claimant ingested cocaine to result in the positive test.” 
Referee’s Decision, p. 3. Employer then appealed the referee’s decision to the 
Board which reversed the referee and denied benefits, finding that the laboratory 
report indicating a positive test result clearly established a violation of Employer’s 
drug policy.2 The Board found that the “cocaine usage occurred sometime 
between the approximate sixtieth and ninetieth day preceding November 6, 1997.” 
Board Finding of Fact No. 11. 

Case law defines willful misconduct as behavior evidencing the 
wanton and willful disregard of an employer’s interest, the deliberate violation of 
rules, the disregard of standards of behavior which an employer can rightfully 
expect from an employee, negligence which manifests culpability, wrongful intent, 
evil design or intentional disregard for the employer’s interest or the employee’s 
duties or obligations. Carson v. Unemployment Compensation Board of Review, 
711 A.2d 582 (Pa. Cmwlth. 1998). The employer bears the burden of proving that 
the employee’s behavior constituted willful misconduct. Luzerne v. 
Unemployment Compensation Board of Review, 611 A.2d 1335 (Pa. Cmwlth. 
1992). 
                                 (a) 

Claimant chiefly argues that the Board’s decision is not supported by 
substantial evidence. She maintains that there is no competent evidence describing 
the chain of custody for the hair samples analyzed in Test Two and that Employer, 
therefore, cannot establish an essential element of its case. Claimant directs the 
Court’s attention to the testimony of Employer’s witness, Dr. Donald 
Kippenberger, that he had no direct knowledge about the chain of custody before 
the hair sample came to the laboratory or about the chain of custody within the 
laboratory. Dr. Kippenberger testified that his knowledge of the chain of custody 
of the hair samples came from reviewing data of other scientists: “I looked at all 
the data that the certifying scientists that [sic] signed” and “I looked at all the data 
from the time the samples came in until the sample was reported.” N.T. at p. 34. 
Claimant contends that Dr. Kippenberger’s testimony regarding the 
chain of custody violates regulations governing telephone testimony set forth at 
34 Pa. Code §101.130 and that, as a consequence, this testimony is inadmissible. 

Section 101.130(e) reads in relevant part: 
	When any testimony will be given from or with the 
	aid of a document not previously distributed to the parties 
	by the tribunal, the party expecting to introduce the 
	document shall deliver it to the tribunal, and the tribunal 
	shall distribute it to each other party and, if known, 
	counsel or authorized agent before or at the beginning of 
	the testimony.

In addition, Section 101.131(h) provides in part as follows: 
	A document not provided as required by §101.130(e) 
	... may not be admitted nor testimony given or taken from 
	it unless consent has been requested from or given by all 
	parties. Testimony taken or given in violation of this 
	subsection will be excluded from consideration, as will 
	the document. 

Claimant argues that the requirements of Section 101.130(e) were not 
met with regard to Dr. Kippenberger’s testimony: the document detailing the chain 
of custody of Claimant’s hair sample in the laboratory was not delivered to the 
tribunal, and it was not distributed to Claimant pursuant to the regulation. 
Claimant’s counsel never waived the right to receive this document; in fact, 
Claimant’s counsel specifically objected to Dr. Kippenberger’s testimony as it was 
inadmissible concerning the chain of custody of Claimant’s hair sample. The 
referee sustained this objection. Notably the Board stated in its brief that the 
litigation packet “unfortunately” was not forwarded to the referee prior to the 
hearing. 

This Court has repeatedly stated that gaps in the chain of custody go 
to the weight to be given the testimony and not to its admissibility. Brunson v. 
Unemployment Compensation Board of Review, 570 A.2d 1096 (Pa. Cmwlth. 
1990). A gap is a period of time in which the custody of a particular piece of 
evidence is not accounted for through testimony. Id. Claimant asserts, and the 
Court agrees, that Dr. Kippenberger’s testimony regarding the chain of custody is 
not merely a gap but in fact represents the totality of the evidence on that subject. 
The record shows that the chain of custody document, or litigation packet not 
distributed in accordance with Section 101.130(e), included the entire 
documentation of how the hair sample was taken and packaged by Dr. Walter
Hoover, Medical Director of USX Clairton, and processed throughout the 
laboratory during different phases of testing. This Court has held that where a 
sample is not taken by the laboratory which prepared the test report, the chain of 
custody must be independently proven before the report may be admitted. 
Worthington v. Department of Agriculture State Horse Racing Commission, 514 
A.2d 311 (Pa. Cmwlth. 1986). 

The Board based its decision in part on the fact that the sample was 
taken by Dr. Hoover in accordance with all “chain of custody requirements and 
procurement procedures” outlined in the sampling protocol of the laboratory. 
Board Finding of Fact No. 15. The litigation packet represents the entirety of the 
evidence regarding the chain of custody for Test Two, and any testimony based on 
this document should have been excluded as it was inadmissible under the Board’s 
regulations. The exclusion of the chain of custody document and testimony based 
thereon therefore cannot be treated as a simple gap in the chain of custody 
evidence. Employer, therefore, has not established an essential element of its case. 
Employer has produced the results of Test Two that registered positive for cocaine 
usage in one part of the hair sample tested; nevertheless, Employer simply has not 
linked those results to Claimant through substantial and competent evidence.3 

                                (b)

The Court further notes that the Board failed to make findings of fact 
specifically as to Claimant’s rate of hair growth despite extensive testimony from 
Claimant’s beautician about the treatment and growth of Claimant’s hair and from 
a cosmetology manager called by Claimant to testify about her knowledge of hair 
growth and her observations of Claimant’s hair. This omission is crucial to 
Claimant’s case because of her contention that her hair growth rate of one-half inch 
per year was much slower than the rate presumed by Employer and, as a result, 
that any positive results shown in Test Two would have registered drug activity 
pre-dating the 1996 Agreement. The referee found that Claimant’s hair grows at a 
slower rate than average and that Employer failed to show when Claimant ingested 
drugs. The Board relied instead on non-substantiated and non-qualified 
expert testimony from Dr. Hoover to find that “[h]uman hair grows roughly onehalf 
inch per month.” Board Finding of Fact No. 12. See Horner v. 
Unemployment Compensation Board of Review, 522 A.2d 1197 (Pa. Cmwlth. 
1987), where scientific testimony was held to be inadmissible because no proper 
foundation was laid for the testimony and the witness was not properly qualified as 
an expert in the field. The Board also found that hair testing can detect drug use 
within a 90-day period as contrasted with a 2 to 3 day period for conventional drug 
testing, and based on the test results here Claimant would have used drugs 
sometime between the sixtieth and ninetieth day preceding November 6, 1997. 

The Court concludes, from the foregoing discussion, that the Board’s crucial 
findings lacked substantial evidence and, consequently, that the Board’s decision 
was not supported by the record. The Court accordingly reverses the order of the 
Board. 

DORIS A. SMITH, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA 
DORIS A. BROADUS, : 
Petitioner ::
v. : NO. 1001 C.D. 1998 
: 
UNEMPLOYMENT COMPENSATION: 
BOARD OF REVIEW, : 
Respondent : 
O R D E R 
AND NOW, this 25th day of November, 1998, the order of the 
Unemployment Compensation Board of Review is reversed. 
_____________________________ 
DORIS A. SMITH, Judge 










NOTES

3 Claimant also argues that the laboratory report must be excluded on hearsay grounds. 
She relies on Philadelphia Electric Company v. Unemployment Compensation Board of Review, 
565 A.2d 1246 (Pa. Cmwlth. 1989), and on McKinney v. Unemployment Compensation Board of 
Review, 543 A.2d 598 (Pa. Cmwlth. 1988). However, Test One and Test Two arguably fall 
under the business records exception to hearsay. See Uniform Business Records as Evidence 
Act, 42 Pa.C.S. §6108(b). Under this exception, a qualified witness must testify to the identity of 
a report and the mode of its preparation. Dr. Kippenberger testified about his familiarity with the 
general testing procedures followed in the laboratory when testing hair samples. In addition, the 
case is distinguishable from Highland Park Center v. Unemployment Compensation Board of 
Review, 503 A.2d 1037 (Pa. Cmwlth. 1986), where the employer’s personnel director provided 
no information relating to the preparation and maintenance of the records at issue to justify their 
admission under the Business Records Act. Nonetheless, even though a record may be
admissible under the Business Records Act, the record contents may not represent competent 
evidence to support a decision if the contents are otherwise inadmissible. Horner.