IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine A. Diamond, :
Petitioner :
:
v. : No. 1507 C.D. 2016
: Submitted: October 17, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: November 17, 2017
Petitioner Catherine A. Diamond (Claimant) petitions this Court for
review of an order of the Unemployment Compensation Board of Review (Board).
The Board affirmed the Unemployment Compensation Referee’s (Referee) decision
denying benefits. The Board concluded that Claimant was ineligible for benefits
1
pursuant to Section 402(e) of the Unemployment Compensation Law (Law),
relating to willful misconduct. We affirm the Board’s order.
Claimant filed for unemployment compensation benefits after being
discharged from her employment as a receptionist for Total Body Pain Management
(Employer). The Altoona UC Service Center (Service Center) issued a
determination finding Claimant ineligible for unemployment compensation benefits.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
Claimant appealed the determination, and a Referee conducted a hearing on
June 26, 2016.
Employer presented the testimony of its owner, Stuart Kauffman
(Owner), its accountant, Alicia Lecompte (Accountant), and its medical assistant,
Emily Winterberger (Medical Assistant). (Certified Record (C.R.), Item No. 10
at 1-2.) Claimant testified on her own behalf and presented the testimony of her
sister, Cecilia Vassallo (Vassallo), who also worked as an office manager for
Employer. (Id.)
Owner testified that Claimant worked as a front desk receptionist, and
Owner terminated her employment on April 25, 2016, for theft and habitual
tardiness. (Id. at 8.) Owner testified that Claimant’s job duties included, among
other things, recording patient payments. (Id. at 11.) In order to keep track of these
payments, Claimant was to record the names of patients that came to receive
treatment, the cost of their treatment, and whether they paid by cash, check, or credit
card. (Id.) Claimant recorded these transactions on a payment log. (Id.) When
patients paid in cash, the money went into a box at Claimant’s desk. (Id. at 19.) At
times, Owner would take distributions of cash directly from the box. (Id. at 31, 51.)
These distributions were also recorded on the payment log. (Id.) At the end of each
day, Claimant was to put the money collected from patients into an envelope and
give it to Vassallo or put the money in Vassallo’s office if Vassallo was not present.
(Id. at 57.)
Regarding Claimant’s tardiness, Owner testified that Claimant’s
original schedule was to be 8:00 a.m. to 4:00 p.m. on Monday, Tuesday, Thursday,
and Friday, and her schedule on Wednesday was to be 8:00 a.m. to 7:00 p.m.
(Id. at 9.) Employer adjusted Claimant’s scheduled hours in order to accommodate
2
Claimant’s repeated tardiness. (Id.) Owner testified that there is a written policy in
place regarding tardiness, which provides that employees are to call if they are going
to be late. (Id. at 10.) Owner did not recall Claimant ever calling to state that she
was running late. (Id.) Owner further testified that Claimant would arrive late
multiple times a week, and Owner warned Claimant about her tardiness on multiple
occasions. (Id. at 8.)
Regarding Claimant’s theft, Owner testified that he became concerned
about what appeared to be a shortage of funds going into Employer’s bank account,
at which time he asked Accountant to investigate the matter. (Id. at 12.) This
investigation led Accountant and Owner to find that the sum of payments recorded
on the payment log was more than actual bank deposits. (Id. at 13.) Owner found
that the patient log would reflect some patients as paying in credit, but those patients
actually paid in cash. (Id. at 11.) Further, the total deposit from the day would be
short by the amount of these erroneous recordings. (Id.) Owner determined that
Claimant or Vassallo was responsible for the missing money. (Id.) Owner
concluded that Claimant would steal the money from cash-paying patients and
record their payment as credit on the payment log. (Id.) Regarding this process,
Owner testified:
We have a sign-in sheet, which shows all of the patients
who are going to be seen that day. . . . When a patient
comes in [Claimant] is supposed to put the name of the
patient down and how they paid; cash, check, or credit.
What [Claimant] was doing was – is she was putting a
patient who paid cash $200, let’s say, or it could be more.
She would then take that money and put it down as a
credit. So, it appears when I counted the cash at the end
of the day that all of the cash added up, but falsely known
to me, or I was unaware for a long time that she was
putting it down as credit, so – and I never checked the
credit card machine. I don’t have even the ability to know
3
how to do that. I assumed that she was being honest and
she would write it down. Several times I would walk to
the front of the desk and I would see that a patient wasn’t
on the list at all, which is a great way to be able to just have
shown a way that where everything doesn’t need to add up
because she would never put it on there and she would say
it was a mistake, she forgot to write them down. This
happened several times. However, we have multiple
sheets – sign-in sheets showing that she incorrectly
marked the sheet down as credit instead of cash, so that
when I added it up at the end of the day, let’s say she did
it with three patients [$]200 each that’s $600. It would add
up correctly as far as the cash because it would go under
credit, which I never checked.
(Id.) Based upon Owner and Accountant’s investigation of this matter, Owner
discharged Claimant for theft and habitual tardiness and proceeded to contact the
proper authorities regarding the theft of Employer’s money. (Id. at 8, 14.)
Medical Assistant testified generally regarding Claimant’s job function
and the day of Claimant’s discharge. (Id. at 56-67.) Medical Assistant testified that
it was Claimant’s responsibility to give Vassallo the cash payments for deposit at
the end of each day. (Id. at 57.) Further, Medical Assistant testified that Claimant’s
habitual tardiness resulted in Medical Assistant having to perform Claimant’s job
until she arrived. (Id. at 60.) Regarding Claimant’s date of discharge, Medical
Assistant testified that after Claimant learned of her termination, Claimant went into
Vassallo’s office and began to collect personal items belonging to herself and
Vassallo. (Id. at 59.) Further, Medical Assistant watched Claimant rip apart a
patient appointment book and payment log prior to leaving Employer’s premises.
(Id.)
Accountant testified regarding Claimant’s theft and the investigation
that led to Claimant’s termination. (Id. at 30-55.) Accountant reviewed the payment
log maintained by Claimant, the bank deposit slips, and credit card receipts for
4
discrepancies in payment recording. Accountant testified to reviewing deposits from
the prior six months, but she only discussed seven specific days at the Referee’s
hearing. (Id. at 33-40.) Accountant testified that April 12, 2016, was the only day
in the preceding six months wherein the deposits matched the payments from the
payment log. (Id. at 41.) On April 13, 2016, the payment log documented that credit
card payments totaled $1,565; however, the credit card deposit showed only $965 in
credit card payments, totaling a $600 discrepancy. (Id.) Accountant found a $50
discrepancy in cash deposits for April 14, 2016, in addition to a $75 check that was
not deposited. (Id. at 39.) On April 15, 2016, there was a $100 discrepancy between
the credit card charges on the payment log and the credit deposits. (Id. at 38.) On
April 19, 2016, there was a $200 discrepancy. (Id. at 37.) On April 20, 2016, there
was a $150 discrepancy, and on April 21, 2016, there was a $310 discrepancy. (Id.
at 33, 35.) Accountant stated that she could not be sure whether Claimant or Vassallo
was responsible for the theft. (Id. at 34.)
Accountant further testified that on the day Employer terminated
Claimant’s employment, Employer found the patient appointment book torn apart
and discovered that computer files containing patient documentation had been
erased. (Id. at 44-45.) Employer later called a forensics team to analyze the
computer. (Id. at 44.)
Claimant’s witness Vassallo testified that she worked as an office
manager for Employer during the time of Claimant’s employment. (Id. at 84.)
Vassallo testified that Claimant would count the money at the end of the day to
ensure the totals were correct. (Id.) At times, Vassallo would have Medical
Assistant double-check Claimant’s totals. (Id.) Further, Vassallo testified that
Owner would always check both the cash and credit card totals to ensure they were
5
correct. (Id.) Regarding the $75 check from April 14, 2016, Vassallo testified that
it could have been due to a post-dated check received from a patient. (Id. at 89.)
Claimant testified to being responsible for ensuring the money added
up correctly at the end of the day and denied having ever stolen money from
Employer. (Id. at 74.) Claimant stated she would count the cash and hand it to
Vassallo at the end of every day. (Id. at 69.) Claimant attributed the discrepancies
in credit card charges to technological issues, contending that “glitch[es] in the
system” led to charges showing up on different days. (Id. at 77-78.)
Regarding Claimant’s last day of employment, Claimant testified that
she did not intentionally tear the payment log or patient appointment log. (Id. at 73.)
Instead, Claimant contended that she might have accidentally torn it when she was
tearing her notes that she used for recording Employer’s messages. (Id.) Claimant
further testified that the computer never contained any files containing patient
information. (Id. at 72.) Finally, although Claimant conceded that she was late for
work on occasion, she attributed it to traffic and public transportation and further
stated that she never previously received a warning or any form of discipline
regarding her tardiness. (Id. at 73-74.)
Following the hearing, the Referee issued a decision, in which she made
the following relevant findings:
1. The claimant was last employed as a full-time Front
Desk Receptionist with the employer from July 15, 2013
until April 25, 2016 at a final rate of pay of $17.50 per
hour.
2. The claimant’s sister also worked for the employer
as an Office Manager.
3. The employer found out that there were insufficient
funds in the bank although there should have been a
sufficient balance to make payroll.
6
4. The employer spoke with the accountant regarding
the monies.
5. The employer found out that the deposits made by
the Office Manager and the log sheets did not match.
6. An investigation was conducted.
7. At the end of the day, the claimant would hand over
the cash and other receipts to the Office Manager.
8. The employer found out that the credit logs did not
match up to what was being put through on credit cards.
9. The claimant would log the payments as credit card
payments, but take the cash.
10. The claimant found out that she was being
suspected of stealing.
11. On April 25, 2016, the claimant erased all the
patients’ files from the computer, and tore up and removed
daily log sheets and the appointment book.
12. The employer filed a complaint with [the] District
Attorney’s Office, and informed the police.
13. The employer also had to call Forensics as the
claimant had erased the data from the computers.
14. The claimant was habitually late, which required the
medical assistant to assist at the front desk.
15. On April 25, 2016, the employer discharged the
claimant for theft and habitual lateness.
(C.R., Item No. 11.)
The Referee concluded that Claimant was ineligible for benefits under
Section 402(e) of the Law, relating to willful misconduct, because she engaged in
theft and habitual tardiness. (Id.) The Referee made credibility determinations in
favor of Employer, specifically discrediting Claimant’s testimony regarding the
missing money. (Id.)
7
Claimant appealed the Referee’s decision to the Board. The Board
affirmed the decision and adopted and incorporated the Referee’s findings of fact
and conclusions of law. (C.R., Item No. 16.)
On appeal,2 Claimant first argues that the Board capriciously
disregarded evidence presented at the hearing.3 Next, Claimant argues that
substantial evidence does not exist to support the Board’s findings of fact. 4
Claimant’s final argument is that the Board erred by determining Claimant’s actions
constituted willful misconduct.
First, we will address Claimant’s argument that the Board capriciously
disregarded relevant evidence. Specifically, Claimant alleges that the Board
capriciously disregarded (1) a text message in which Owner told Vassallo that he
“was not accusing anyone of theft,”5 (2) Claimant testifying to not stealing the
2
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. § 704. Review for capricious disregard of material evidence is an appropriate component of
appellate review in every case in which such question is properly brought before the Court. Leon
E. Wintermeyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 (Pa. 2002).
3
In her brief, Claimant also contends that the Referee exhibited bias in favor of Employer.
(Pet’r Br. at 14.) This contention, however, is directed toward the Referee’s and Board’s alleged
disregard of evidence presented at the hearing. Accordingly, we will construe Claimant’s
argument to be that the Board capriciously disregarded evidence.
4
In her petition for review, Claimant challenges all but two of the Board’s findings of fact.
In her brief, however, Claimant does not advance an argument with respect to many of the findings
of fact. Because Claimant did not develop arguments relating to these issues in her brief, the
challenges are waived. See Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544, 548
n.3 (Pa. Cmwlth. 1994). Accordingly, this Court will analyze whether substantial evidence exists
to support the findings of fact for which Claimant has advanced an argument.
5
On cross-examination of Owner, Claimant’s counsel introduced evidence in the form of
a screenshot of a text message from Owner to Vassallo. (C.R., Item No. 10 at 20-21.) The
8
money, and (3) Claimant’s testimony that she never received a prior warning
regarding her tardiness. (Pet’r Br. at 18.) This Court has previously explained:
When determining whether the Board capriciously
disregarded the evidence, the Court must decide if the
Board deliberately disregarded competent evidence that a
person of ordinary intelligence could not conceivably have
avoided in reaching a particular result, or stated another
way, if the Board willfully or deliberately ignored
evidence that any reasonable person would have
considered to be important.
Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n.4
(Pa. Cmwlth. 2007). We have characterized capricious disregard of evidence as “a
deliberate and baseless disregard of apparently reliable evidence.” Taliaferro v.
Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 814 (Pa. Cmwlth. 2004), appeal
denied, 887 A.2d 1243 (Pa. 2005).
In an unemployment case, it is well settled that the Board is the ultimate
factfinder and is, therefore, entitled to make its own determinations as to witness
credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review,
501 A.2d 1383, 1388 (Pa. 1985). The Board is also empowered to resolve conflicts
substance of the text conversation preceding the screenshot text message is unknown. Owner
described the prior text message as Vassallo accusing Owner of accusing Vassallo of stealing. (Id.
at 23.) The entirety of the screenshot text message provided:
Don’t threaten me. I did not make any accusations about anyone stealing anything.
Don’t know who is telling you these things but your information is incorrect. And
as far as the [Drug Enforcement Agency] and the [Internal Revenue Service] or any
other organization with three letter words [sic] you’re just a disgruntled employee.
You were in charge of keeping track of all monies. Whether or not any money was
taken or not taken you were to account for it and give that information to
[Accountant].
(C.R., Item No. 11 at Claimant’s “Ex. 1.”) Claimant argues that this message is proof that Owner
never accused Claimant of theft and both the Referee and the Board capriciously disregarded this
evidence in determining that Claimant engaged in theft from Employer.
9
in the evidence. DeRiggi v. Unemployment Comp Bd. of Review, 845 A.2d 253, 255
(Pa. Cmwlth. 2004). “Questions of credibility and resolution of evidentiary conflicts
are within the sound discretion of the Board, and are not subject to re-evaluation on
judicial review.” Peak, 501 A.2d at 1388. In addition, the Board is not required to
accept even uncontroverted testimony as true in making its determinations. Edelman
v. Unemployment Comp. Bd. of Review, 310 A.2d 707, 708 (Pa. Cmwlth. 1973).
In the instant case, Employer and Claimant both presented conflicting
testimony regarding the text message from Owner to Vassallo, Claimant’s theft of
Employer’s funds, and Claimant’s tardiness. As to the screenshot text message, the
Referee explained during the hearing that the text was out of context and that he
would have preferred to see the entire text conversation. (C.R., Item No. 10 at 21-
22.) The Referee agreed to admit the screenshot text into the record, but he stated
that he would determine later what weight to afford it. It appears that the Referee
and Board chose to give the screenshot text between Owner and Vassallo little, if
any, weight when determining the circumstances surrounding Employer’s
termination of Claimant’s employment. Determinations as to the weight to be given
to evidence is within the purview of the factfinder. Peak, 501 A.2d at 1388. The
Board reviewed all of the testimony and found Employer’s witnesses’ testimony to
be more credible than Claimant’s. The Board thus resolved all conflicts in testimony
in favor of Employer. The Board has no obligation to accept Claimant’s version of
the facts. Arrington v. Unemployment Comp. Bd. of Review, 413 A.2d 790, 791
(Pa. Cmwlth. 1980). The Board did not capriciously disregard relevant evidence
merely because it chose not to accept Claimant’s version of events regarding her
tardiness and theft. Accordingly, we conclude that the Board did not capriciously
disregard evidence.
10
Next, we address Claimant’s argument that the Board’s findings of fact
are unsupported by substantial evidence. As previously mentioned, we will only
analyze those findings of fact for which Claimant has developed an argument. In
her brief, Claimant advanced arguments challenging the Board’s findings of fact
numbers 9, 11, and 14. We conclude that Claimant’s challenges to these findings
are without merit.
Courts have defined substantial evidence as “relevant evidence upon
which a reasonable mind could base a conclusion.” Rohde v. Unemployment Comp.
Bd. of Review, 28 A.3d 237, 242 (Pa. Cmwlth. 2011). In evaluating the record to
determine whether there is substantial evidence to support the adjudicatory findings,
this Court examines the testimony in the light most favorable to the prevailing party,
giving that party the benefit of any inferences that can logically and reasonably be
drawn from the evidence. Id.
Regarding the Board’s finding of fact number 9—that Claimant would
log the payments as credit and take the cash—Employer presented the testimony of
Owner, who credibly testified that it was Claimant’s responsibility to record
patients’ payments on the patient log. (C.R., Item No. 10 at 11.) Accountant also
testified that the discrepancies in the deposits were due to payments recorded as
“credit” although the patient paid in cash. (Id. at 33-40.) Further, Claimant
conceded that she was unable to provide an explanation for all of the discrepancies.
(Id. at 76.) Viewing the evidence in the light most favorable to the prevailing party,
we conclude that substantial evidence exists to support the Board’s finding of fact
number 9.
As for finding of fact number 11—that Claimant erased computer files
and destroyed the appointment book—Accountant, Medical Assistant, and Claimant
11
herself testified to tearing the appointment book, although Claimant contends it was
an accident. (Id. at 73.) Accountant testified that on the day Employer terminated
Claimant’s employment, computer files containing patient information were all
erased, prompting Employer to reach out to a forensics team in an attempt to recover
the data. (Id. at 44.) Accountant also testified that the deletion of these files would
not be attributable to a “computer glitch.” (Id.) Although Claimant provided
contrary testimony, asserting that the computer never contained any patient files, the
Board found that Claimant deleted Employer’s computer files. As such, our review
of the record demonstrates that there is substantial evidence to support this finding.
Turning to finding of fact 14—that Claimant was habitually late, which
required Medical Assistant to perform Claimant’s job until she arrived—we also find
Claimant’s challenge unpersuasive. Owner, Medical Assistant, and Claimant herself
testified that Claimant was late on multiple occasions. (Id. at 9, 60, and 74.) Further,
Medical Assistant testified that she would handle Claimant’s duties until Claimant
came to work. (Id. at 60.) Accordingly, substantial evidence exists to support this
finding.
We now will address Claimant’s final argument that the Board erred in
concluding that Claimant engaged in willful misconduct. 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 Comp. Bd. of Review,
425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
Section 402(e) of the Law provides, in part, 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.” The employer bears the burden of proving that the claimant’s
12
unemployment is due to the claimant’s willful misconduct. Walsh v. Unemployment
Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful
misconduct” is not defined by statute. The courts, however, have defined “willful
misconduct” as:
(a) wanton or willful disregard of employer’s interests, (b)
deliberate violation of the employer’s rules, (c) disregard
of standards of behavior which an employer can rightfully
expect of an employee, or (d) negligence indicating an
intentional disregard of the employer’s interest or an
employee’s duties and obligations.
Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Claimant’s entire argument on this issue is predicated on her version of
the facts, i.e., that she did not steal money from Employer and that she was never
warned regarding her habitual tardiness. The Board, however, did not accept
Claimant’s version. Instead, it found that Claimant both was habitually late and was
responsible for Employer’s missing funds. To the extent that Claimant argues there
is no direct evidence of Claimant’s theft, we have previously held that an employer
may rely solely on circumstantial evidence to establish a claimant’s actions
constituted theft. Ford v. Unemployment Comp. Bd. of Review, 504 A.2d 427, 428
(Pa. Cmwlth. 1986), appeal denied, 521 A.2d 935 (Pa. 1987).
Theft and habitual tardiness are examples of conduct this Court has
previously held to constitute willful misconduct. See Unemployment Comp. Bd. of
Review v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977) (holding one isolated
instance of theft is sufficient to constitute willful misconduct); see also
Unemployment Comp. Bd. of Review v. Glenn, 350 A.2d 890, 892
(Pa. Cmwlth. 1976) (holding habitual tardiness is adequate grounds for a finding of
13
willful misconduct). The Board did not err, therefore, in concluding that Claimant’s
actions were tantamount to willful misconduct.
Accordingly, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Catherine A. Diamond, :
Petitioner :
:
v. : No. 1507 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 17th day of November, 2017, the order of the
Unemployment Compensation Board of Review is hereby AFFIRMED.
P. KEVIN BROBSON, Judge