IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shen Smiles, P.C.

, :

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, : No. 1582 C .D. 20 19

Respondent : Submitt ed: Dec ember 8 , 20 20

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 conclud ing 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. O n 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 S ection 11.4(a) of T he D ental Law

. 2

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

Service Center found Claimant in eligible 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 2 0, 201 9 , the Referee conclud ed that Employer

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

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

appealed to the UCBR. On October 11 , 201 9 , 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 T he 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 refer red to the restriction in Section 11.4(a) of T he Dental Law as the State Board of Dentistry’s regulation

. See R eproduce d

R ecord 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 7 04 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 employe r 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 m isconduct 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; citation s omitted). The law is well established that:

[T]h e [ 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 C omp. Bd. of Rev

. , 949 A.2d 338, 342 (Pa.

Cmwlth. 2008) ( emphasis added ; citation s 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 reason ably be drawn from the

evidence.

Constantini v. Unemployment Comp. Bd. of Rev

. , 173 A.3d 838, 842 (Pa. C mwlth. 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 p racticing dentistry without a license when she direct ed a dental

hygienist to take her uncle’s x

- ray s without Shen’s permission and in her absence.

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

permission to direct the tak ing of the x

- ray s and Shen was not at the office when the

x

- ray s 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

- ray s taken

. S ee R.R. at 9a. She explained that a dental hygienist

took her uncle’s x

- ray s and that

, on Wednesdays, when no dentists were at the office,

dental hygienists routinely t ook x

- rays with the doctor’s permission

. See R.R. at

10a. Rodriguez and Contreras corroborat ed Claimant’s assertion s

. See R.R. at 14a,

16a , 19a

. Claimant expounded that she was unaware of legal prohibitions relating

to her conduct. S ee 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 x

rays were being taken

. See R.R. at 12a.

The UCBR explicitly found Claimant and her witness es 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, JudgeIN 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 11 th day of January , 20 2 1

, the Unemployment

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

___________________________ ANNE E. COVEY, Judge