IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LaVonta M. Webb

, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 545 C.D. 2018

Respondent : Submitted: September 28 , 2018

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: December 28, 2018

LaV onta M. Webb (Webb) petitions, pro se , for review of the February

26, 2018 order of the Unemployment Compensation Board of Review (Board)

,

w hich affirmed the r eferee ’s denial of benefits based on willful misconduct. Upon

review, we affirm.

Giant Eagle (Employer) employed Webb as the deli prepared foods

manager in its store located in Franklin, Pennsylvania. Findings of Fact (F.F.) 1;

Transcript of Testimony (T.T.) 5. Webb supervised the hot foods and deli

department and her duties included writing fo od orders, preparing schedules, and

attending regular meetings with the store manager, Lisa B ain (Bain) . F.F. 1; T.T. 8.

W hile interviewing an employee for possible termination relating to a food safety

violation, Bain learned that the employees in Webb’s department were giving2

discounts to other employees and family members on hot food items in violation of

store policy. F.F. 4; T.T. 6

- 7

. T he employees in Webb’s department charged other

e mployees and their family members a flat rate of $3.99 pe r pound on prepared food

items regardless of the shelf pri ce for the item. F.F. 5; T.T. 7. Employer had a policy

that prohibited employees, including Webb, from creating and giving discounts to

emp loyees or their family members on food purchased in the deli unless specificall y authorized by Employer. F.F. 9; T.T. 7 & 9.

Bain contacted Emplo yer’s loss prevention manager

, who interviewed

the emplo yees in Webb’s department and concluded that Webb gave the discount

and trained her employees to give the discount. F.F. 6

- 8; T.T. 7 & 9 . As a result,
on June 30, 2017, Employer discharged Webb for “violations of [c]ompany policy

in connection with [ her ] repeatedly granting unauthorized discounts.” 6/30/17 letter

from Scott P. Moberg of Employee Management Consultants, Inc. to Webb. Webb

applied for unemployment compensation benefits with t he Erie Unemployment

Compensation Ser vi ce Center (UC Service Center), which denied her request

. Subsequently, the UC Service Center issued a notice of determination of
overpayment of benefits due to an “error” that caused Webb to be “paid for benefits
in which she was later found not eligible to receive.” 11/8/17 Notice of

Determinati on of Overpayment of Benefits.

Web b appealed the UC Service Center’s decision to deny her request

for unemployment compensation benefits and determination of overpayment of

benefits to th e r eferee

, who held a hearing on the matter. Based on the evidence

presented, the r eferee affirmed the UC Service Center’s decision and concluded that

Employer met it s burden of proving that it discharged Webb for reasons which rise

to the level of willful misconduct in connection with her work pursuant to Section3

402(e) of the Pennsylvania Unemployment Co mpensation Law

. 1 12/18/17 Referee’s

Decision/Order at 3. In so concluding, the r eferee explaine d:

the employ er has policies which were known to [Webb] which prohibit granting or receiving unauthorized discounts to or from a customer or employee and dishonesty in form. [Webb] was in charge of the department and she was required to train employees on policies. The employer has provided credible testimon y that [Webb] was training employees to give employees and their family member s discounts and [Webb] had no authority to do so. Although [Webb] has only admitted to averaging out prices, that would still be a violation of the employer’s policies.

Id

. T he r eferee further concluded that Webb received unemployment compensation

benefit s to which she was not entitled due to an error at the UC Service Center, and

therefore, has a non

- fault overpayment of benefits. Id

. Webb appealed the r eferee’s

dec ision to the Board, which adopted and incorporated the r eferee’s findings of facts

and conclusions of law by order dated February 26, 2018 . Webb now petitions this

Court for review. 2

1 Section 402(e) of the Pennsylvania Unemployment Compensation Law, Act o f December 5, 1936 (Second Exec. Sess.) , P.L. (1937) 2897, as amended , 43 P.S. § 802(e), provides, in relevant part, “[a]n employ e shall be ineligible for compensation for any week

-- ( e) [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.”

2 Our scope of review in this case is limited to determining whether the factual findings are supported by substantial evidence and whether an error of law has been committed. Johnson v. Unemployment Comp. Bd. of Review , 502 A.2d 738, 740 (Pa. Cmwlth. 198 6). Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Id . The Board’s findings of fact are conclusive on appeal as long as the record, taken as a whole, contains substantial evidence to support th ose findings. Brandt v. Unemployment Comp. Bd. of Review

, 643 A.2d 78, 79 (Pa. 1994).4 In cases involving a work rule violation, the employer must establis h

the existence of the work rule and its violation. Cipriani v. U nemployment C

omp.

B d. of R eview , 466 A.2d 1102, 1105 (Pa. Cmwlth. 1983). Here, Employer

established that it had a rule prohibiting employees from creating and giving

discounts on prepared food items, T.T. 9, and Webb does not dispute this on appeal.

Rather, before this Court, Webb dis putes that she violated Employer’s policy. Webb

argues that the Bo ard erred when it adopted the re feree’s finding that she “trained

deli employees how to give the discount” because she “never gave any employee the

authority to give discounts or even train ed them to do so.” Webb’s Brief at 9. Webb

maintains that she did not authorize or train the employees t o give discounts ;
therefore, the Board’s conclusi on that Employer terminated her for willful

misconduct connected to her work is no t supported

. 3 Id

. at 10.

Upon review of the recor d, we conclude that the Board’s finding that

Webb trained deli employees o n how to give the discount, Finding of Fact 8, is

supported by substantial evidence

. At the hearing, Bain testified that the employees

told her, w hen interviewed, that they would sell hot food items to the employees and
their families at a flat rate of $3.99 per pound, that Webb was aware of this practice,

and that Webb trained the employees to provide the discount. T.T. 6

- 7. A clerk in

the hot fo ods deli department, Amanda Hart, testified and corroborated Bain’s

testimony 4 that Webb and the cook trained Hart to authorize discounts on prepared

foods to employees and their families. Id . at 10

- 11. The Board found this evidence

3 Webb asserts that the referee and the Board erred when they found that she was manager for longer than she actually was . This was harmless error ; the pertinent fact i s that Webb was the deli manager at the time of termination.

4 Hearsay evidence admitted without objection will be given its natural probative effect and may support a finding of the Board if it is corroborated by competent evidence in the record. Walker v. Unemployment Comp. Bd. of Review , 367 A.2d 366 (Pa. Cmwlth. 1976).5

to be credible. The Board is the ultimate fact finder and arbiter of credibility; its

credibility determinations are not subject to re

- evaluation by this Court. Waverly

Heights, Ltd. v. Unemployment Comp. Bd. of Review , 173 A.3d 1224, 1227 (Pa.

Cmwlth. 2017). A dditionally, Webb admitted that she knew that an employee in her

department, the cook, was discounting hot food for employees and Webb admitted

that she made price adjustments when busy. 5 T.T. 11; F.F. 7

- 8 & 10. Webb had no

authority to permit employees to give the discount , yet she trained employees on

how to give the discount . T.T. 9

- 11; F.F. 8

- 9. This was a violation of Employer’s

policy. Consequently, the Board did not err, as a matter of law, when it co ncluded

that Employer discharged Webb for willful misconduct and denied her request for

benefits. 6

Accordingly, we affirm.

__________________________________ CHRISTINE FIZZANO CANNON, Judge

5 Webb testified:

[T]he only thing that I ever did wrong in that [sic] Hot Foods was if it was really crowded, if there was a big line of people, if somebody came up and they wanted the hot wings and they wanted fries which were wedges they were called. Wedges for $3.99 a pound and the
hot

– the other chicken, it was $5.99 a pound. I would charge them $4.99 a pound. To me that wasn’t giving them a discount because
the fries were very heavy, so was the meat, so to me it equaled out. T.T. 11.

6 To the extent Webb asserts that she is entitled to the benefits she received and no overpayment was made, the Board contends that Webb waived this issue because she did not raise it in her appeal to the Board. We agree. Merida v. Unemployment Comp. Bd. of Review , 543 A.2d 593, 596 (Pa. Cmwlth. 1988) (issues no t specifically raised in the appeal to the Board are waived and the Board is not required to review the evidence in search of e rrors). Moreover, given our conclusion that the Board did not err when it concluded that Employer discharged Webb for willful misconduct and, therefore, was not entitled to benefits, any benefits Webb received constituted an overpayment of benefits

.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

LaVonta M. Webb

, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 545 C.D. 2018

Respondent :

O R D E R

AND NOW, this 28th day of December , 2018, the February 26, 2018

order of the Unemployment Compe nsation Board of Review is AFFIRMED

.

__________________________________ CHRISTINE FIZZANO CANNON, Judge