IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arnold Gibbs, :

Petitioner :

: No. 901 C.D. 2015

v. :

: Submitted: September 18, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 16, 2015

Arnold Gibbs (Claimant) petitions pro se for review of the May 12, 2015 

order of the Unemployment Compensation Board of Review (Board), affirming a 

referee’s determination that Claimant is ineligible for benefits under section 402(e) of 

the Unemployment Compensation Law (Law).1 For the following reasons, we affirm. 

Claimant was employed as a full-time truck driver with Superior Plus 

Energy Services (Employer) from November 20, 2013, to February 2, 2015, when he 

was discharged for failing to comply with a supervisor’s directive. The local service 

center determined that Claimant was not ineligible for benefits under section 402(e) 

of the Law, and Employer appealed. A referee held a hearing on March 30, 2015. 

 

1 Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. 

§802(e).
2

At the hearing, Employer offered the testimony of Kevin Dunlap, 

Employer’s customer service center manager. Dunlap testified that on January 21, 

2015, Claimant was delivering propane to a rural agricultural location and attempted 

to navigate a logging road marked “no winter maintenance” that was covered with 

approximately one foot of snow. Dunlap stated that Claimant was driving a large 

propane truck that weighed approximately forty-thousand pounds and was filled to 

approximately three-quarters of capacity. Dunlap noted that Claimant had previously 

made deliveries to the rural location, but he had never approached it from this 

direction. Dunlap testified that Claimant told him he decided to take that route

because his GPS recommended it and he thought that he could pass it without 

incident. Dunlap further testified that Claimant navigated the road for approximately 

three-quarters of a mile until he was unable to traverse a hill. Dunlap stated that, at 

that point, Claimant backed the vehicle down the hill and attempted to maneuver the 

truck to the right of the road, which caused the vehicle to get stuck. Dunlap testified

that the truck’s location posed a significant hazard because one side of the road 

dropped off approximately twenty feet and the other side bordered a creek, which 

could be compromised and constitute an environmental hazard if any propane was 

released. Dunlap stated that Employer requested the assistance of the state police and

local fire department to restrict the road from any traffic until the vehicle could be 

towed the next day; however, the police determined that the tow should be performed 

immediately because large four-wheel drive vehicles frequently used the logging 

road. Dunlap noted that the cost to tow the vehicle was approximately $4,400.00 and 

the truck sustained approximately $2,000.00 in damage. (Notes of Testimony (N.T.) 

at 5-7, 10, 13.)
3

Dunlap testified that he drove one of Employer’s vehicles to retrieve 

Claimant from the incident scene and return him to Employer’s facility. Dunlap 

stated that, during the return to Employer’s facility, he directed Claimant to provide a 

written statement regarding the incident before he returned home. Dunlap testified

that this instruction was typical for this type of incident because a statement was 

necessary for insurance purposes. Dunlap further testified that, when they returned to 

Employer’s facility, he again told Claimant that he must provide a written statement 

regarding the incident before going home. (N.T. at 7.) 

Dunlap stated that, when they returned to Employer’s facility, Claimant 

left without providing a statement of the incident. Dunlap noted that Claimant 

returned to Employer’s facility later that evening to return the keys to the damaged 

vehicle and that Claimant was again advised that he must provide a statement; 

however, Claimant left without complying. Dunlap stated that Employer was 

required to report the incident to its insurance company that same day, and it did not 

have a statement of events to include in its report. Dunlap noted that this directive 

was standard procedure and recounted two recent incidents involving Employer’s

vehicles where employees were required to provide a statement before returning 

home. Dunlap stated that Claimant did not provide a written statement until his 

termination date. (N.T. at 6-7, 13, 21.)

Dunlap further testified that Employer’s policy requires employees to 

participate in any investigations Employer conducts based on incidents involving its

vehicles. Dunlap stated that the policy is contained in Employer’s employee 

handbook, which Claimant received when he began employment with Employer.2 

 

2

Employer offered into the record an unsigned and undated “Receipt of Employee Safety 

Handbook” with Claimant’s name printed at the bottom of the page. (N.T. at 12.)
4

Dunlap testified that Employer’s policy provides a three-day suspension for an 

employee’s failure to provide a statement for an investigation and that an employee 

will be terminated if noncompliance continues. Dunlap noted that getting a vehicle

stuck and failing to provide a statement are both dischargeable offenses; however, he 

stated that Claimant would not have been discharged if he had provided a statement 

when he returned to Employer’s facility or when he returned the keys to the vehicle

later that evening. Dunlap testified that Claimant was notified that evening that he 

was suspended pending the outcome of Employer’s investigation and that Claimant 

was discharged on February 2, 2015, for failure to provide a written statement 

regarding the incident with Employer’s vehicle as directed by his supervisor. (N.T. at

5, 11-15.)3

 

3

 At first, Dunlap testified that Claimant was only suspended for three days. However, after 

clarification, it was established that Claimant was instead suspended pending the outcome of 

Employer’s investigation: 

R: Okay. Now tell me about the suspension business. I don’t 

have that.

EW: When he did provide the . . .

R: Right

EW: . . . statement . . .

R: On the 21st.

EW: . . . we decided to suspend him while we did our investigation.

R: So when was he suspended?

EW: The date of the incident which would have been the 21st I 

believe. I think that was the date of the incident was the 21st. 

R: Okay. But when – no, no, which days was he actually 

suspended then?

EW: It would have been the 22nd, 23rd, and 24th. 

R: Okay. Then what happened between the 24th and February 

2nd? 

(Footnote continued on next page...)
5

Employer offered into the record seven pictures that Dunlap took the 

evening the incident occurred. The pictures showed the conditions of the logging 

road that Claimant navigated, such as the depth of the snow, the location of the “no 

winter maintenance” sign, and the position of the stuck vehicle. (N.T. at 8-9.)

Claimant provided a different account of the events preceding his 

discharge. Claimant acknowledged that Dunlap discharged him on February 2, 2015, 

because he failed to provide a written statement regarding the incident with the 

propane truck. However, Claimant stated that the only time Dunlap asked him for a 

statement was during the return to Employer’s facility. Claimant testified that he 

returned home without providing a written statement because he suffers from 

pancreatitis, he was hungry, and he did not feel well because he spent the entire day 

with the stuck vehicle. Claimant stated that he received a phone call from Dunlap 

approximately two hours after returning home advising Claimant that he was 

suspended for three days and that they would discuss the suspension the following 

Monday. Claimant further testified that when he returned to Employer’s facility later 

that evening to return the keys to the damaged vehicle, Dunlap did not direct him to 

provide a written statement. Claimant stated that when he arrived at Employer’s 

 

(continued...)

EW: I believe it was a weekend if I recall. 24th, 25th . . .

R: There’s a whole week in between there, 26, 27, 28, 29, and 30.

EW: Oh, yes. We . . .

R: Was he back at work or what?

EW: We – no. He was – in this situation, because he didn’t provide 

the statement, we suspended him pending the outcome of the 

investigation. 

(R.R. at 14-15.) 
6

facility the following Monday, he delivered a written statement regarding the incident 

with Employer’s vehicle; nevertheless, at that time, Dunlap asked him to sign a piece 

of paper indicating that Claimant was being terminated for failing to provide the

statement as directed. Claimant testified that he advised Employer the week before 

the incident that it was unsafe to send drivers to that rural location the day after a 

snowstorm and that he did not want to make deliveries there. Claimant stated that he 

did not see the “no winter maintenance sign” and was completely dependent on the 

GPS. Claimant acknowledged that he was aware that he was required to provide a 

written statement, but said he was unaware that the statement must be provided that 

evening. (N.T. at 15-16, 20.)

Following the hearing, the referee made the following relevant findings 

of fact:

11. On the way back to the employer’s facility, the 

customer service center manager instructed the claimant to 

complete an incident report related to the accident, by the 

end of the day for insurances purposes.

12. When they arrived back at the employer facility, the 

claimant was again told to prepare a written statement 

regarding the accident before he left for the day. 

13. The claimant left for the day without preparing the 

statement.

14. The claimant was suspended from his job effective 

January 22, 2015 pending the results of an investigation.

15. The claimant was discharged from employment on 

February 2, 2015, for failure to provide a written statement 

regarding the mishap with his truck as instructed by the end 

of the day on January 21, 2015. 

(Findings of Fact Nos. 11-15.) 
7

By decision and order dated April 1, 2015, the referee resolved any

conflicting testimony in Employer’s favor and credited Dunlap’s testimony that he 

advised Claimant twice on January 21, 2015, to prepare a written statement before 

returning home that day. The referee concluded that Claimant’s disregard of 

Employer’s directive constituted willful misconduct connected with his work. 

Consequently, the referee reversed the local service center’s decision and determined 

that Claimant was ineligible for benefits under section 402(e) of the Law. Claimant 

appealed to the Board, which affirmed the referee’s decision and adopted the 

referee’s findings and conclusions of law. 

On appeal to this Court,

4 Claimant argues that the Board’s decision is 

not supported by substantial evidence. We disagree.

Section 402(e) of the Law provides 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 Law does not define the term “willful misconduct.” However, our courts have 

defined it as including: (1) conduct that evidences a willful disregard of the 

employer’s interests; (2) a deliberate violation of the employer’s rules; (3) a disregard 

of the standards of behavior which the employer has a right to expect of an employee; 

or (4) negligence indicating an intentional disregard of the employer’s interests or of 

the employee’s duties and obligations to the employer. Hager v. Unemployment 

Compensation Board of Review, 482 A.2d 1368, 1370 (Pa. Cmwlth. 1984).

 

4 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, and whether findings of fact are supported by substantial 

evidence. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1162 n.2 (Pa. 

Cmwlth. 2013). 
8

An employee’s refusal to comply with an employer directive may 

constitute willful misconduct. Pryor v. Unemployment Compensation Board of 

Review, 475 A.2d 1350, 1352 (Pa. Cmwlth. 1984). When an employee is discharged 

for refusing to comply with an employer’s directive, the reasonableness of the 

employer’s request must be balanced against the employee’s justification for 

noncompliance under the circumstances. Wilkerson v. Unemployment Compensation 

Board of Review, 399 A.2d 1188, 1189 (Pa. Cmwlth. 1979). An employee does not 

commit willful misconduct when the alleged misconduct is justifiable and reasonable 

under the circumstances. Patterson v. Unemployment Compensation Board of 

Review, 430 A.2d 1011, 1013 (Pa. Cmwlth. 1981). “It is well-settled that an 

employer bears the burden of establishing willful misconduct and . . . where such 

misconduct involves . . . the refusal to obey an employer’s directive, the employee 

bears the burden of proving good cause for his refusal.” Connelly v. Unemployment 

Compensation Board of Review, 450 A.2d 245, 246 (Pa. Cmwlth. 1982). 

Although the issue of whether an employee’s conduct constitutes willful 

misconduct is a matter of law, the Board is the ultimate fact finder. Hager, 482 A.2d 

at 1370. “It is now axiomatic in an unemployment compensation case, that the 

findings of fact made by the Board . . . are conclusive on appeal so long as the record, 

taken as a whole, contains substantial evidence to support those findings.” Taylor v. 

Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). In 

determining whether substantial evidence exists, “[t]he appellate court’s duty is to 

examine the testimony in the light most favorable to the party in whose favor the 

Board has found, giving that party the benefit of all inferences that can logically and 

reasonably be drawn from the testimony.” Id. 
9

Claimant challenges the Board’s finding that Dunlap twice directed him

to provide a written statement regarding the incident before he returned home. 

Claimant asserts that Dunlap only told him to submit a statement once, in passing,

during the return to Employer’s facility and did not indicate that there was any time 

by which the statement must be delivered. 

In making this argument, Claimant relies on his preferred version of the 

facts rather than the facts as found by the Board. It is well settled that “[q]uestions of 

credibility and the resolution of evidentiary conflicts are within the sound discretion 

of the Board, and are not subject to re-evaluation on judicial review.” Miller v. 

Unemployment Compensation Board of Review, 405 A.2d 1034, 1036 (Pa. Cmwlth. 

1979). Thus, “[t]he fact that [a party] may have produced witnesses who gave a 

different version of the events, or that [the party] might view the testimony differently 

than the Board is not grounds for reversal if substantial evidence supports the Board’s 

findings.” Middletown Township v. Unemployment Compensation Board of Review, 

40 A.3d 217, 223 (Pa. Cmwlth. 2012). In this case, Dunlap’s credible testimony 

supports the Board’s findings of fact and, thus, they may not be disturbed on appeal. 

These findings, in turn, support the Board’s legal conclusion that Claimant was 

discharged for willful misconduct. 

Accordingly, we affirm. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arnold Gibbs, :

Petitioner :

: No. 901 C.D. 2015

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 16th day of November, 2015, the order of the 

Unemployment Compensation Board of Review, dated May 12, 2015, is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge