IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LuAnn B. Batista, :

Petitioner :

:

v. : No. 465 C.D. 2016

: Submitted: October 7, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: November 22, 2016

LuAnn B. Batista (Claimant), representing herself, petitions for 

review from an order of the Unemployment Compensation Board of Review 

(Board) that affirmed a referee’s decision and denied her unemployment 

compensation (UC) benefits under Section 402(e) of the Unemployment 

Compensation Law1(Law) (relating to willful misconduct). Additionally, the 

Board determined Claimant did not show good cause for failing to attend the 

referee’s initial hearing, and it declined to consider additional evidence offered on 

the merits at a remand hearing. She contends the Board’s determination that she 

committed willful misconduct is not supported by substantial evidence. Claimant 

also asserts she did not attend the initial hearing because she did not receive notice 

of the hearing. Discerning no error below, we affirm.

 

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

§802(e).
2

I. Background

Claimant worked for Reading Health System (Employer) as a fulltime, floating intake specialist from December 2008 until September 9, 2015, when 

Employer discharged her. Claimant applied for UC benefits, which the local 

service center granted. Employer appealed, and a referee held a hearing. 

At the referee’s hearing, Employer presented the testimony of its 

Human Relations Business Partner (Human Relations Business Partner), and its

Patient Access Supervisor (Supervisor). Claimant did not attend the hearing. 

Based on Employer’s evidence, the referee made the following 

findings. Employer has a policy (Behavior Policy) requiring workers to 

demonstrate the highest standards of integrity, truthfulness and honesty under any 

and all circumstances. Employer informed Claimant of the Behavior Policy. 

Violation of this policy may result in termination. Employer warned Claimant for 

previous disciplinary violations of its policies. When Employer administered the

warning to Claimant on June 15, 2016, Employer informed Claimant this was a 

final written warning and future violations could result in termination. The final 

incident leading to Claimant’s termination from employment occurred on August 

28, 2015. Referee’s Op., 10/29/15, Findings of Fact (F.F.) Nos. 3-8.

On the date of the final incident, Supervisor assigned Claimant to 

work at telephone extension 7538 and her co-worker to work at telephone 

extension 2460. Claimant called her co-worker five times on the date of the final

incident because Claimant was angry regarding an issue with insurance coverage 
3

of a patient. Employer’s human resources department became aware of this 

incident on or about September 1, 2015, and conducted an investigation of the 

incident until September 9, 2015. F.F. Nos. 9-11.

Employer questioned Claimant about the allegation during the 

investigation. In response, Claimant told Employer she only called her co-worker 

twice. Employer presented Claimant with telephone records showing there were 

five calls made from extension 7538 to extension 2460 during a short period of 

time on the day of the final incident. After being presented with this evidence, 

Claimant acknowledged she contacted her co-worker four or five times. Employer 

discharged Claimant based on dishonest behavior as well as alleged inappropriate 

and unprofessional behavior. F.F. Nos. 12-16.

The referee determined Claimant’s dishonesty during the investigation

constituted willful misconduct, and, therefore determined Claimant was ineligible 

for UC benefits pursuant to Section 402(e) of the Law. Claimant appealed to the 

Board. 

Claimant requested a hearing on the basis that she was unable to 

attend the original hearing because she did not receive the notice of hearing. The 

Board remanded to referee, acting as the Board’s hearing officer, to receive 

evidence on Claimant’s reasons for her non-appearance at the initial hearing and to 

allow the parties to present additional evidence on the merits if they wished to do 

so. 
4

At the remand hearing, Claimant, representing herself, testified that in 

the beginning and middle of October 2015 vandals in her neighborhood scattered

her mail about the streets and smashed her pumpkins. Claimant testified her 

daughter found the mail in the street. Claimant testified she did not have any other 

issues with mail delivery at her address. Claimant testified she had no knowledge 

of the initial hearing because she did not receive notice of the hearing. However, 

she testified she did receive the referee’s decision sent on October 29, 2015. 

Claimant also testified she called the police, but did not make a police report. 

Referee’s Hr’g, Notes of Testimony (N.T.), 12/16/15, at 5-7. 

For its part, Employer again presented the testimony of its Human

Relations Business Partner and Supervisor. These witnesses testified regarding the 

merits of Claimant’s claim. 

After the remand hearing, the Board issued a decision in which it

expressly discredited the Claimant’s testimony about her mail. Bd. Op., 1/29/16 at 

1. In addition, it stated, “The Board does not find the claimant’s bald allegations 

credible.” Id. As a result, the Board determined the Claimant did not demonstrate 

with credible testimony good cause for missing the first hearing, and the Board did 

not consider the additional evidence on the merits offered at the remand hearing. 

Id. The Board adopted the Referee’s findings and conclusions from the first 

hearing regarding the merits. Id. 

Claimant requested reconsideration of the Board’s order, which the 

Board denied. Claimant now petitions for review.
5

II. Issues

On appeal,2 Claimant contends the Board’s findings regarding her 

termination from employment are not supported by substantial evidence. 

Specifically, Claimant argues she had proper cause for failing to appear at the 

initial hearing because she did not receive notice of the hearing. Claimant also 

argues the reasons for her termination do not constitute willful misconduct. 

Claimant maintains Employer’s policies are not uniformly enforced because 

another employee received no discipline for her actions; Supervisor was retaliating 

against Claimant because she reported Supervisor; and, Employer simply “did not 

like my attitude.”

3

 For these reasons, Claimant alleges her actions do not amount 

to willful misconduct. 

III. Discussion

In UC cases, the Board is the ultimate fact-finder and is empowered to 

resolve all conflicts in the evidence, witness credibility, and weight accorded to the 

evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 

A.2d 338 (Pa. Cmwlth. 2008). It is irrelevant whether the record contains evidence 

to support findings other than those made by the fact-finder; the critical inquiry is 

whether there is substantial evidence to support the findings actually made. Id. 

Where substantial evidence supports the Board’s findings, they are conclusive on 

appeal. Id. In addition, we must examine the testimony in the light most favorable 

 

2 Our review is limited to determining whether the necessary findings of fact were 

supported by substantial evidence, whether errors of law were committed, or whether 

constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432 

(Pa. Cmwlth. 2010) (en banc).

3

Pet. for Review at ¶3.
6

to the party in whose favor the fact-finder ruled, giving that party the benefit of all

logical and reasonable inferences from the testimony. Id. 

 

Substantial evidence is such relevant evidence upon which a 

reasonable mind could base a conclusion. Umedman v. Unemployment Comp. Bd. 

of Review, 52 A.3d 558 (Pa. Cmwlth. 2012); Johnson v. Unemployment Comp. 

Bd. of Review, 502 A.2d 738 (Pa. Cmwlth. 1986). “The 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.” Tapco, Inc. v. 

Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108–09 (Pa. Cmwlth. 

1994).

Section 101.24(a) of the Board’s regulations, 34 Pa. Code §101.24(a) 

addresses requests for reopening the record where a party does not attend a 

scheduled hearing. It states, in relevant part:

If a party who did not attend a scheduled hearing subsequently 

gives written notice, which is received by the tribunal prior to 

the release of a decision, and it is determined by the tribunal 

that his failure to attend the hearing was for reasons which 

constitute ‘proper cause,’ the case shall be reopened.

Id. 

Here, the Board’s findings regarding Claimant’s failure to provide 

proper cause for missing the initial hearing are amply supported. The notice of 

hearing for the initial hearing was mailed to Claimant at 561 East Linden Street, 
7

Fleetwood, PA 19522. Certified Record (C.R.), Item No. 8. Claimant confirmed 

561 East Linden Street, Fleetwood, PA 19522 was her correct address. N.T., 

12/15/16, at 2, 5. Claimant testified she did not receive her notice of initial hearing 

in the mail. Id., at 5. However, Claimant testified she did receive the notice of 

determination and did not have any other issues with the receipt of mail at her 

address of record. Id., at 6-7; C.R., Item No. 19, at 1. Claimant did not file a 

police report, and she testified she told the police, “I said no one had to come out.” 

N.T., 12/15/16 at 5. Further, Claimant did not notify the postal authorities of the 

alleged theft of her mail. Id. at 6. The Board expressly discredited Claimant’s 

testimony about her mail. Bd. Op., 1/29/16 at 1.

Claimant also argues the Board erred in determining Employer 

properly terminated her because her actions constituted willful misconduct. 

Claimant maintains: Employer did not uniformly enforce its policies because 

another employee received no discipline for her actions; Supervisor retaliated

against Claimant because she reported Supervisor; and, Employer did not like her 

attitude.

Section 402(e) of the Law provides, “[a]n employe shall be ineligible 

for compensation for any week ... [i]n which [her] employment is due to [her] 

discharge ... from work for willful misconduct connected with [her] work....” 43 

P.S. §802(e). “Willful misconduct” is “behavior evidencing a wanton or willful 

disregard of the employer’s interest; a deliberate violation of the employer’s work 

rules; a disregard of standard of behavior the employer can rightfully expect from 

its employee; [or], negligence indicating an intentional disregard of the employer’s 
8

interest or an employee’s duties or obligations.” Dep’t of Corr. v. Unemployment 

Comp. Bd. of Review, 943 A.2d 1011, 1015 (Pa. Cmwlth. 2008).

Whether a claimant’s actions constitute willful misconduct “is a 

question of law fully reviewable on appeal.” Downey v. Unemployment Comp. 

Bd. of Review, 913 A.2d 351, 353 (Pa. Cmwlth. 2006). The employer bears the 

initial burden of proving a claimant engaged in willful misconduct. Ductmate. 

When asserting a discharge based on a violation of a work rule, an employer must 

establish the existence of the rule, the reasonableness of the rule, the claimant’s 

knowledge of the rule and its violation. Id. 

Because the Board determined Claimant lacked proper cause for her 

failure to attend the initial hearing, it appropriately did not consider her testimony 

on the merits at the remand hearing. See Ortiz v. Unemployment Comp. Bd. of 

Review, 481 A.2d 1383 (Pa. Cmwlth. 1984) (requiring Board to make a 

determination using record before referee if claimant’s absence at referee’s hearing 

was not excused by proper cause); C.R., Item No. 18. Thus, the Board based its 

decision regarding Claimant’s willful misconduct on the evidence of record prior 

to the remand hearing. Ortiz. To that end, Employer’s witnesses established the 

existence of its Behavior Policy, the reasonableness of that policy, Claimant’s 

knowledge of the Behavior Policy, and Claimant’s knowledge that she violated the 

Behavior Policy. N.T., 12/16/15, at 10, 12, 22; C.R. Item No. 9, Employer Exs.

Nos. 1-5. 
9

Thus, the record supports the Board’s determination that Employer 

met its burden of proof under Section 402(e) of the Law, as Claimant violated 

Employer’s Behavior Policy. Ductmate; Dep’t of Corr. Claimant’s dishonesty 

amounted to a willful violation of the standards of behavior Employer could expect 

from an employee. Downey (employee’s dishonesty can exhibit a disregard of the 

employer’s interests and disregard of standards of behavior that an employer can 

rightfully expect from its employees). 

IV. Conclusion

In sum, the Board’s findings are supported by substantial evidence. 

The Board properly determined Claimant did not prove proper cause for failing to 

appear at the initial hearing. The Board did not err in refusing to consider the 

additional testimony and evidence offered on the merits at the remand hearing by 

Claimant. The Board properly determined Employer terminated Claimant from 

employment for reasons which rise to the level of willful misconduct under Section 

402(e) of the Law, and therefore she is ineligible for UC benefits. Accordingly, we 

affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LuAnn B. Batista, :

Petitioner :

:

v. : No. 465 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 22nd day of November, 2016, the order of the 

Unemployment Compensation Board of Review is AFFIRMED.

 

ROBERT SIMPSON, Judge