IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Giant Eagle, Inc., :

Petitioner :

:

v. : No. 1184 C .D. 20 1 7

: Argu ed: May 8 , 20 1 8 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONOR ABLE ELLEN CEISLER, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: May 30, 2018

Giant Eagle, Inc. (Employer) petitions for review of an order of the

Unemployment Compensatio n Board of Review (Board) finding Stanley J.

Semerod (Claimant) not ineligible for unemployment compensation (UC) benefits

under Section 402(e) of the Unemployment Compensation Law (Law) 1 because

Employer failed to establish that Claimant’s discharge was d ue to willful

miscond uct.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §§
751

- 918.10. Section 402 (e) provides, in pertinent part, “ An employe shall be ineligible for compensation for any week . . . [i] n which his unempl oyment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of
whether or not such work is ‘employment’ as defined in this act

. . . . ” 43 P.S. § 802(e).2 I

. The underlying facts are largely undisputed. Claimant worked as a

full

- time pharmacist for Employer from October 3, 1989

, until January 27, 2017

, when he was discharged for allegedly violating Employer’ s written policy

prohib iting employees from breaking the “ law. ” The “law” that Claimant

purportedly violated was the State Board of Pharmacy regulation (Pharmacy

Code) 2 prohibiting pharmacy technicians from “[a]ccept[ing] or transcrib[ing] an

oral order or telephone prescriptio n . . . .” 49 Pa. Code § 27.12(d)(3)(i)

. 3 Claimant

was alleged to have vio lated the law when , on at least two occasions , he permitted

a pharmacy technician to call a doctor to request “ clarification ” on prescription s
that provided conflicting instruction s

.

On one occasion, Claimant permitted the pharmacy technician to call

a doctor to request clarification for a prescription of birth control written for 21

days or 28 days. On another occasion, he permitted the pharmacy technician to

call a doctor to re quest clarific ation for a prescription that stated , “Take one as
directed, take as directed on package.” ( Reproduced Record ( R.R. ) at 74a.)

Although Claimant was not certain whether the law permitted him to delegate this

2 See generally Chapter 27 of Titl e 49 of the Pennsylvania Code.

3 A “prescription” is defined as “[a] written, electronic or oral order issued by a licensed medical practitioner in the course of professional practice for a controlled substance, other drug or device, or medication which i s dispensed for use by a consumer.” 49 Pa. Code § 27.1; see also Section 2(8) of the Pharmacy Act, Act of September 27, 1961, P.L. 1700, as amended , 63 P.S. § 390

- 2(8) (defining “Prescription” as “a written or oral order issued by a duly licensed
medical practitioner in the course of his professional practice for a controlled substance, other drug or device or medication which is dispensed for use by a consumer.”). An “Order” is defined as “[a]ny directive from a medical practitioner.” 49 Pa. Code § 27.1

.3

responsibility to the pharmacy te chnician, he never asked his supervisor f or
permission or instruction on the matter.

On February 15, 2017, Claimant filed an application for benefits with

the Erie UC Service Center (Service Center) , which issued a notice of

determination finding Claiman t ’s conduct was not tantamount to willful

misconduct

, and , therefore, he was not in eligible for benefits un der Section 402(e)

of the Law, 43 P.S. § 802(e). Employer appealed and

, following a hearing and

testimony, 4 t he Referee affirmed the Service Center’ s determination

. T he Board

then also affirmed , concluding that Claimant ’s conduct did not violate the law. As

the Board reasoned :

These prescriptions were already written, so they were not “an oral order or telephone prescription” and the first prohibit ion does not apply. In each case, the prescribing doctor presented two potential meanings for the prescriptions: (1) either a twenty

- one day prescription or a twenty

- eight day prescription and (2) either “Take one as directed” or “take as directed on pac kage.” In each case, the pharmacist technician was exercising no “discretion or independent professional judgment,” so the second prohibition does not apply.

Although the Board does not question the employer’s right to discharge the claimant, it cannot c onclude that the employer met its burden to show that he violated the regulation cited.

4 In add i tion to Claimant’s testimony, Employer offered the testimony of Andrew Gaus, Kelly Green e , and William Rumcik, Jr.4

(R.R. at 104a.) Employer then filed this petition for review. 5

II.

On appeal, Employer once again contends that Claimant knowingly

violated its written policy proh ibiting employees from breaking the law when he

direct ed a pharmacy technician, on at least two occasions, to call a prescribing

doctor and take oral “clarifications

. ”

A.

The standard for willful misconduct is well

- defined as:

(1) a wanton and willful d isregard of the employer ’ s interests; (2) a delib erate violation of the employer’ s rules ; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, or evil design, or an intentional and substantial disregard of the employer ’ s interests or the employee ’ s duties and obligations.

Adams v. Unemployment Compensation Board of Review , 56 A.3d 76, 78 (Pa.

Cmwlth. 2012) (emphasis added)

.

5 Our review of the Board’ s decision is limited to determining whether an error of law was committed, whether constitutional rig hts were violated, or whether necessary findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of
Review , 833 A.2d 1181, 1183 n.4 (Pa. Cmwlth. 2003). In UC m atters, “the Board is the ultimate
fact finder and i s empowered to resolve conflicts in the evidence and to determine the credibility of witnesses.” Owoc v. Unemployment Compensation Board of Review , 809 A.2d 441, 443 (Pa. Cmwlth. 2002). “Findings made by the Board are conclusive and binding on appeal if the record, examined as a whole, contains substantial evidence to support the findings.” Id.5 Where an employer bases a claim of willful misconduct on the

violation of a work rule, it bears the initial burden of proving the existence of a

reasonable work rule and its violation. Daniels v. Unemployment Compensation

Board of Review , 755 A.2d 729, 731 (Pa. Cmwlth. 200 0). The employer must also

show the intentional and/or deliberate violation of the work rule

. BK Foods, Inc. v.

Unemployment Compensation Board of Review , 547 A.2d 873, 875 ( Pa. Cmwlth.

1988). An inadvertent or neg ligent violation of an employer’ s rule may not

constitute willful misconduct. Grieb v. Unemployment Compensation Board of

Review , 827 A.2d 422, 426 ( Pa. 2003)

. Therefore, a determination of what

constitutes willful misconduct requires consideration of all the relevant

circumstances. Rebel v. Unemployment Compensation Board of Review , 723 A.2d

156, 158 ( Pa. 1998).

“ Once employer meets this burden, the burden shifts to the claimant to

prove that the rule was unreasonable or that he had good cause for violating the

rule. ” Weingard v. Unemploy ment Compensation Board of Review , 26 A.3d 571,

574

- 75 (Pa. Cmwlth. 2011). However, where an employer fails to carry its initial

burden of proving a deliberate violation, it is unnecessary t o consider whether the

claimant’ s conduct constitutes good cause. Philadelphia Parking Authority v.

Unemployment Compensation Board of Review , 1 A.3d 965, 969 (Pa. Cmwlth.

2010).

“A claimant has good cause if his .

. . actions are justifiable and

reasonable under the circumstances.” Grand Sport Auto Body v. Unemploy ment
Comp ensation Board of Review , 55 A.3d 186, 190 (Pa. Cmwlth. 2012) (quoting6

Do cherty v. Unemployment Comp ensation Board of Review , 898 A.2d 1205, 1208

- 09 (Pa. Cmwlth. 200 6) ). Ultimately, “[t]he question of whether conduct rises to

the level of willful misconduct is a question of law to be determined by this

Court.” Scott v. Unemployment Compensation Board of Review , 105 A.3d 839,

844 (Pa. Cmwlth. 2014).

B

.

Turning to Employer’s initial burden, Claimant admits to knowing
Employer’s work rule and the relevant laws that he allegedly violated . H e does not

dispute the reasonableness of Employer’s work rule

, but only that he did not

violate a work rule because his asking a pharmacy technician to make the call s was

for clarification and not for the actual taking of a prescription.

T he Pharmacy Code does not explicitly mention the effect of a
“clarification” and/or “modification” to an already

- existing prescription. On the

one hand, it is the written prescription (and not the oral clarification and/or

mod ification) that ultimately provided Claimant with the authority to dispense

medication to both consumers. On the other hand, without further oral clarification

and/or modification by the prescribing doctor, that written prescription was

effectively meanin gless due to certain contradictions contained therein.

Employer contends that Claimant ’s conduct was unlawful because, by

direct ing a pharmacy technician to transcribe an oral modification of an existing

written prescription, Claimant was essentially dir ecting that pharmacy technician

to take an oral or telephone “prescription ” and/or “order.” According to Employer,7

to hold otherwise would allow pharmacists to substitute their judgment for that of

the State Board of Pharmacy, which has determined that un trained and unlicensed

pharmacy technicians should not be responsible for taking and interpreting

prescriptions.

The Board, in response , contends that Claimant’s conduct could not

constitute willful misconduct because the pharmacy technician only sought
“clarification” of a written prescription in light of certain contradictions.

According to the Board, the assigned pharmacy technician could not be considered

as taking prescriptions because a written prescription was already provided

, and

any further ins truction only aided the pharmacist’s interpretation of that already

existing prescription.

An unemployment appeal is not the proper proceeding to interpret the

Pharmacy Code. Fortunately , we need not reach the issue of whether the Board ’s

interpretation of the Pharmacy Code regulation was correct because its finding that

Claimant did not commit willful misconduct is tantamount to finding that Claimant

did not deliberately violate the regulation. C laimant’s delegation in both instances

only involved the resolution of contradictory instructions; such delegation did not

involve the actual taking of an entirely new order or involve medication beyond the

written prescription. G iven that the Board found that Claimant did not violate the

Pharmacy Code and Clai mant is not a legal expert versed in statutory and/or

regulatory interpretation, Employer did not make out that Claimant’s misconduct

was either deliberate or intentional

.8 Accordingly, because Claimant’s conduct was not willful misconduct

,

we affirm the Board’s decision.

________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Giant Eagle, Inc., :

Petitioner :

:

v. : No. 1184 C .D. 201 7

: Unemployment Compensation : Board of Revie w, :

Respondent :

O R D E R

AND NOW, this 30 th day of May 2018, it is hereby ordered that the

order of the Unemployment Compensation Board of Review in the above

captioned matter is affirmed.

________________________________ DAN PE LLEGRINI, Senior Judge