IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry K. Johnson, :

Petitioner :

:

v. : No. 1841 C.D. 2016

: Submitted: September 1, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: January 19, 2018

Henry K. Johnson (Claimant) petitions for review from an order of the 

Unemployment Compensation Board of Review (Board), which affirmed a referee’s 

decision finding Claimant ineligible for unemployment compensation (UC) benefits 

under Section 402(e) of the Unemployment Compensation Law.1 The Board found 

Claimant’s error in dispensing medication to a client constituted willful misconduct. 

Claimant argues that he was denied his due process rights and that the Board’s 

decision is not supported by substantial evidence. Upon review, we affirm.

I. Background

Elwyn Inc. (Employer) employed Claimant as a full-time life skills 

associate from 2000 until 2016. Claimant’s job included dispensing medications to 

 

1

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

§802(e).
2

clients. In August 2014, Claimant received a three-day suspension for a medication 

error. The suspension letter stated that another error could lead to termination. 

Relevant here, in May 2016, Claimant made another medication error

by signing a record stating he dispensed a client medication when he did not. 

Employer obtained an investigation of the incident, after which it terminated 

Claimant’s employment.

Claimant applied for UC benefits. In his initial telephone interview 

with the Department of Labor and Industry (Department), he admitted the 

medication error, saying he was confused.

In its telephone interview with the Department, Employer stated it 

discharged Claimant because of a medication error. Employer explained that

Claimant initialed a medication record stating he gave a medication that he did not 

actually give. Notably, Employer stated it provided a requisite prior warning in 

August 2014.

The Department issued a Notice of Determination denying benefits, 

finding Claimant violated Employer’s rules because he was confused. Claimant 

appealed. 

A referee conducted a hearing. At the hearing, Employer’s

representative stated Employer obtained an outside investigation concerning the 

medication error. Employer relied on the results of the investigation in deciding to 
3

discharge Claimant. However, Employer did not produce the investigation report or

any of the supporting documentation, and it did not present testimony from the 

investigator.

Employer submitted in evidence its written progressive discipline 

policy concerning medication errors. Under the policy, a further medication error 

following a prior suspension carried a penalty of discharge from employment. 

Certified Record (C.R.), Ref. Hr’g, 7/29/16, Ex. E-5. Employer’s representative 

testified that Claimant was informed of the policy. 

Employer also placed into evidence an August 2014 letter notifying 

Claimant of his suspension and warning that he could be terminated if he made 

another error. Employer’s representative testified that Claimant made a medication 

error in May 2016, and because his file contained a record of his prior suspension, 

discharge was the next step under Employer’s discipline policy. Consistent with 

Employer’s prior statement to the Department, Employer’s representative testified 

that the 2014 suspension was the warning Claimant received prior to discharge.

The referee determined Claimant committed willful misconduct. The 

referee found that Claimant forgot to give medication, and that in light of his prior 

warning, he did not have good cause for the error. 

Claimant filed a timely appeal to the Board, asserting that the record 

did not support the referee’s determination of willful misconduct. Claimant 

requested the taking of additional evidence, but the Board denied the request.
4

The Board affirmed the referee’s decision, issuing its own findings. 

The Board determined that Claimant’s failure to give the medication constituted 

willful misconduct because Claimant recorded that he gave a medication when he 

did not. The Board inferred from the false record that Claimant’s conduct was 

deliberate. 

Claimant filed a request for reconsideration, which the Board denied. 

Claimant then filed a timely petition for review with this Court.

II. Issues

Claimant presents three issues on appeal.

2

 We summarize them as 

follows: (1) the Board violated Claimant’s due process rights because he did not 

receive copies of investigation documents on which Employer relied in making its 

termination decision; (2) the Board lacked substantial evidence that Claimant made 

a medication error; and, (3) the Board lacked substantial evidence for its 

determination that Claimant engaged in willful misconduct.

 

2

 Our review of a final decision by the Board is limited to determining whether the Board 

lacked substantial evidence for a material finding of fact, made an error of law, violated the 

petitioner’s constitutional rights, or failed to follow agency procedures. Ductmate Indus. v. 

Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Substantial evidence is 

relevant evidence sufficient to allow a reasonable mind to reach a conclusion. Kauffman Metals, 

LLC v. Dep’t of Labor & Indus., 126 A.3d 1045 (Pa. Cmwlth. 2015), appeal denied, 135 A.3d 588 

(Pa. 2016). 

The Board is the ultimate finder of fact, resolving all issues of credibility, conflicting 

evidence, and evidentiary weight. Ductmate. The question is not whether the evidence would 

support different findings from those made by the Board, but rather, whether the record evidence 

supports the findings the Board actually made. Id.
5

III. Discussion

A. Due Process

Claimant first argues that the Board violated his due process rights 

because he did not receive a copy of Employer’s investigation report and related 

documents. We disagree.

The record reveals that Claimant asked about the report at the referee’s 

hearing; however, he did not specifically request a copy. See C.R., Ref. Hr’g, Notes 

of Testimony (N.T.) at 12. Similarly, in his appeal to the Board, Claimant did not 

request a copy of the investigation report, even though he did request a copy of the 

hearing transcript. See C.R., Item No. 12 (Petition for Appeal) at 4. Claimant cites 

no authority entitling him to receive information he did not request. As the record 

does not indicate any request by Claimant for the investigation report, its absence 

did not deprive him of any right.

B. Substantial Evidence

In his next argument, Claimant contends that the Board lacked 

substantial evidence for its finding that Claimant committed a medication error. The 

Board found that Claimant admitted the error, but Claimant insists he merely 

acknowledged Employer’s representations of what happened.

Claimant argues that the Board improperly relied on hearsay evidence 

of Claimant’s error. At the hearing, Employer acknowledged that it conducted an 

investigation of Claimant’s error, but Employer did not offer testimony from its 
6

investigator or produce the investigative report and related documents. However, 

Claimant did not raise a hearsay objection at the hearing.

Claimant later raised the absence of the investigative information with 

the Board, not as a hearsay objection, but as the basis for his remand request. He 

argued the record was incomplete and more information was needed on the question 

of whether Claimant made a medication error. The Board denied the remand request 

because it found Claimant admitted his mistake, thereby obviating any need for a 

remand. Thus, the Board relied on Claimant’s admission of the medication error, 

not on Employer’s purported hearsay testimony.

The record contains substantial evidence supporting the Board’s

determination that Claimant admitted his medication error. He expressly admitted 

it in his initial Department questionnaire. C.R., Item No. 2 (Claimant Questionnaire)

at 1. Further, at the hearing before the referee, Employer’s representative testified 

Claimant told her he forgot the medication and he was sorry. C.R., N.T. at 13. 

Claimant’s own testimony was equivocal. First, he stated he did not give the

medication, id. at 16; later, he stated he did give it, id. at 17; finally, he said he did 

not remember, id. at 19. The Board resolved the conflicting testimony and issues of 

credibility in Employer’s favor, as it was entitled to do. We will not disturb the 

Board’s findings of fact. See Ductmate Indus. v. Unemployment Comp. Bd. of 

Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
7

C. Willful Misconduct

Lastly, Claimant argues the Board erred in finding that he committed 

willful misconduct. We reject this argument.

“Willful misconduct” for purposes of UC benefits eligibility, is: (1) 

wanton and willful disregard of the employer’s interest; (2) deliberate violation of 

rules; (3) disregard of standards of behavior an employer rightfully expects; or, (4) 

negligence manifesting culpability, wrongful intent, evil design, or intentional and 

substantial disregard for the employer’s interests or the employee’s duties and 

obligations. Geisinger Health Plan v. Unemployment Comp. Bd. of Review, 964 

A.2d 970 (Pa. Cmwlth. 2009) (en banc). Whether specific conduct constitutes

willful misconduct is a question of law, which is reviewable by this Court. Id.

The employer has the burden of proving willful misconduct. Id. If the 

misconduct consists of violating a rule, the employer must show that the rule existed, 

the employee was aware of the rule, and the employee violated the rule. Id.

In this case, Claimant’s responses to the initial Department 

questionnaire were sufficient to sustain Employer’s burden. Claimant admitted: (1)

he was discharged for a rule violation; (2) the rule violation was a medication error; 

(3) he was or should have been aware of the rule; (4) a prior warning was given; and, 

(5) the violation required discharge or suspension. C.R., Item No. 2 (Claimant 

Questionnaire) at 1. Moreover, Employer provided ample corroborating testimony 

and documentary evidence at the hearing. The Board was entitled to credit that 

evidence.
8

Claimant signed the medication administration record stating he gave 

the medication when he did not. The Board inferred from that conduct that 

Claimant’s conduct was deliberate. This Court examines the evidence in the light 

most favorable to Employer as the party that prevailed before the Board, giving 

Employer the benefit of any inferences that can logically and reasonably be drawn 

from the evidence. Danielle Viktor, Ltd. v. Dep’t of Labor & Indus., Bur. of Emp’r 

Tax Operations, 892 A.2d 781 (Pa. 2006). We conclude the Board’s inference of 

willful misconduct, based on Claimant’s conscious act of signing a false medication 

record, could logically and reasonably be drawn from the evidence in this case.

Claimant also argues that Employer admitted there was no willful 

misconduct because it stated in its questionnaire response that the reason for the 

discharge was unsatisfactory performance rather than willful misconduct. However, 

Employer also stated in that same response that Claimant signed a record stating that 

he gave medication when he did not. Moreover, Employer’s characterization of 

Claimant’s conduct in the questionnaire response was not binding on the Board, 

which was free to find willful misconduct based on the evidence. See McDonough 

v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1231 C.D. 2011, filed 

February 24, 2012), 2012 WL 8678944 (unreported) (questionnaire responses by 

employer in telephone interview, answering “no” on whether there was misconduct, 

did not prevent a finding of willful misconduct); Williams v. Unemployment Comp. 

Bd. of Review (Pa. Cmwlth., No. 390 C.D. 2009, No. 391 C.D. 2009, filed October 

15, 2009), 2009 WL 9102298 (unreported) (if employer’s questionnaire responses 
9

differ from other evidence, the Board is free to give more weight to the other 

evidence).

3

Accordingly, the Board did not err in concluding that Claimant 

committed willful misconduct.

IV. Conclusion

Based on the foregoing, we affirm the Board’s decision.

 

ROBERT SIMPSON, Judge

 

3

 We find the reasoning of these unpublished cases persuasive. 210 Pa. Code §69.414(a).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Henry K. Johnson, :

Petitioner :

:

v. : No. 1841 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 19

th day of January, 2018, the decision of the 

Unemployment Compensation Board of Review is AFFIRMED.

 

ROBERT SIMPSON, Judge