IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shen Smiles, P.C., :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1582 C.D. 2019

Respondent : Submitted: December 8, 2020

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: January 11, 2021

Shen Smiles, P.C. (Employer) petitions this Court for review of the 

Unemployment Compensation (UC) Board of Review’s (UCBR) October 11, 2019 

order affirming the Referee’s decision granting Catherine M. Martin (Claimant) UC 

benefits. The issue before the Court is whether the UCBR erred by concluding that 

Employer did not meet its burden of proving that Claimant engaged in willful 

misconduct under Section 402(e) of the UC Law (Law).1 After review, we affirm.

Claimant was employed as a full-time office manager in Employer’s 

dental office from March 2013 until April 18, 2019. On March 26, 2019, Claimant 

directed Employer’s dental hygienist to take x-rays of Claimant’s uncle’s teeth while

dentist Linda Shen (Shen), Employer’s owner, was not present in the office. 

Claimant’s uncle was not Employer’s patient. On April 18, 2019, Employer 

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

802(e) (referring to willful misconduct).
2

terminated Claimant’s employment for practicing dentistry without a license, citing 

to Section 11.4(a) of The Dental Law.

2

Claimant applied for UC benefits. On May 17, 2019, the Duquesne UC 

Service Center found Claimant ineligible for UC benefits under Section 402(e) of 

the Law. Claimant appealed, and a Referee held a hearing on June 19, 2019. Shen 

testified for Employer. Claimant appeared on her own behalf, and presented

testimony of former co-workers, Wydalis Rodriguez (Rodriguez) and Angela 

Contreras (Contreras). On June 20, 2019, the Referee concluded that Employer 

failed to meet its burden of demonstrating that Claimant engaged in willful 

misconduct, and reversed the UC Service Center’s determination. Employer 

appealed to the UCBR. On October 11, 2019, the UCBR affirmed the Referee’s 

decision. Employer appealed to this Court.3

Initially, Section 402(e) of the Law provides that an employee shall be 

ineligible for UC benefits for any week in which his/her unemployment is due to 

discharge or suspension for willful misconduct. 

[W]illful misconduct is defined by the courts as: (1) 

wanton and willful disregard of an employer’s interests;

(2) deliberate violation of rules; (3) disregard of the 

2 Act of May 1, 1933, P.L. 216, as amended, added by Section 12 of the Act of December 

20, 1985, P.L. 513, 63 P.S. § 130e. Section 11.4(a) of The Dental Law states, in pertinent part:

On and after January 1, 1987, no auxiliary personnel except dental 

hygienists and public health dental hygiene practitioners shall 

perform radiologic procedures on the premises of the dentist unless 

such person is under the direct supervision of a dentist who is on the 

premises at the time the [x]-ray is taken . . . .

63 P.S. § 130e(a). Employer, the Referee and the UCBR erroneously referred to the restriction in 

Section 11.4(a) of The Dental Law as the State Board of Dentistry’s regulation. See Reproduced 

Record at 7a, 27a and UCBR Op. at 1.

3

“Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether the findings of fact were unsupported 

by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” 

Turgeon v. Unemployment Comp. Bd. of Rev., 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
3

standards of behavior which an employer can rightfully 

expect from an employee; or, (4) negligence showing an 

intentional disregard of the employer’s interests or the 

employee’s duties and obligations. The employer bears 

the initial burden of establishing a claimant engaged in 

willful misconduct. Whether a claimant’s actions 

constitute willful misconduct is a question of law fully 

reviewable on appeal. 

The issue of whether Claimant’s conduct constituted 

willful misconduct under Section 402(e) of the Law is a 

question of law fully reviewable by this Court.

Johns v. Unemployment Comp. Bd. of Rev., 87 A.3d 1006, 1009-10 (Pa. Cmwlth. 

2014) (emphasis added; citations omitted). The law is well established that:

[T]he [UCBR] is the ultimate fact-finder in [UC] matters 

and is empowered to resolve all conflicts in evidence, 

witness credibility, and weight accorded the evidence. 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 evidence to support 

the findings actually made. Where substantial evidence[4]

supports the [UCBR’s] findings, they are conclusive on 

appeal. 

Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. 

Cmwlth. 2008) (emphasis added; citations omitted). “Questions of credibility and 

the resolution of evidentiary conflicts are within the discretion of the UCBR and are 

4 Substantial evidence is relevant evidence that a reasonable mind 

might consider adequate to support a conclusion In determining 

whether there is substantial evidence to support the [UCBR’s] 

findings, this Court must examine 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.

Constantini v. Unemployment Comp. Bd. of Rev., 173 A.3d 838, 842 (Pa. Cmwlth. 2017) (citation 

omitted).
4

not subject to re-evaluation on judicial review.” Bell v. Unemployment Comp. Bd. 

of Rev., 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007) (emphasis added).

In the instant matter, Shen testified that Claimant engaged in willful 

misconduct by practicing dentistry without a license when she directed a dental 

hygienist to take her uncle’s x-rays without Shen’s permission and in her absence. 

See Reproduced Record (R.R.) at 7a. According to Shen, she did not give Claimant 

permission to direct the taking of the x-rays and Shen was not at the office when the 

x-rays were taken. See R.R. at 8a-9a, 21a-22a. 

Claimant testified that she requested and obtained Shen’s consent to 

have her uncle’s x-rays taken. See R.R. at 9a. She explained that a dental hygienist 

took her uncle’s x-rays and that, on Wednesdays, when no dentists were at the office, 

dental hygienists routinely took x-rays with the doctor’s permission. See R.R. at 

10a. Rodriguez and Contreras corroborated Claimant’s assertions. See R.R. at 14a, 

16a, 19a. Claimant expounded that she was unaware of legal prohibitions relating 

to her conduct. See R.R. at 10a-11a. Finally, she contradicted Shen’s testimony that 

Shen was absent when the x-rays were taken, stating that Shen returned while the xrays were being taken. See R.R. at 12a. 

The UCBR explicitly found Claimant and her witnesses credible, and 

that Shen’s testimony lacked credibility. This Court may not re-evaluate the 

UCBR’s credibility determinations. See Bell. Based on the record evidence, the 

[UCBR] explained, “[a]s a dental hygienist took the x-ray[s] with [E]mployer’s prior 

authorization, the [UCBR] does not find [E]mployer’s argument persuasive that 

[C]laimant should have known that she was violating dental regulations.” UCBR 

Op. at 1. Because Employer failed to present credible evidence that Claimant 

engaged in willful misconduct, Employer failed to sustain its burden of proof.
5

For all of the above reasons, the UCBR’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shen Smiles, P.C., :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1582 C.D. 2019

Respondent :

O R D E R

AND NOW, this 11th day of January, 2021, the Unemployment 

Compensation Board of Review’s October 11, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge