Opinion
No. 877 C.D. 2013 No. 878 C.D. 2013 No. 879 C.D. 2013
04-09-2014
John A. Kozura, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner John A. Kozura (Claimant) petitions for review of three orders of the Unemployment Compensation Board of Review (Board). In issuing each of its orders, the Board reversed the decisions of a Referee, thereby denying Claimant unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. The Board also determined that Claimant received three fault overpayments subject to recoupment under Section 804(a) of the Law and assessed sixteen penalty weeks under Section 801(b) of the Law. For the reasons set forth below, we now affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a). Section 804(a) provides, in relevant part:
Any person who by reason of his fault has received any sum as compensation under this act to which he was not entitled, shall be liable to repay to the Unemployment Compensation Fund to the credit of the Compensation Account a sum equal to the amount so received by him and interest at the rate determined by the Secretary of Revenue . . . .
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 871(b). Section 801(b) of the Law provides, in relevant part:
Whoever makes a false statement knowing it to be false, or knowingly fails to disclose a material fact to obtain or increase any compensation or other payment under this act or under an employment security law of any other state or of the Federal Government or of a foreign government, may be disqualified in addition to such week or weeks of improper payments for a penalty period of two weeks and for not more than one additional week for each such week of improper payment . . . .
Claimant filed multiple claims for unemployment compensation benefits after he was repeatedly suspended and ultimately discharged from employment as a science teacher with the Mahanoy Area School District (Employer). The Scranton UC Service Center (Service Center) issued several notices of determination to Claimant. Specifically, the Service Center found Claimant to be ineligible for benefits beginning with the compensable weeks ending February 25, May 19, and August 4, 2012. (Certified Record (C.R.), Item No. 5.) The Service Center also found that Claimant had received three fault overpayments totaling $7,896 for the weeks ending February 25, 2012, through March 31, 2012; May 19, 2012, through June 23, 2012; and August 4, 2012, and August 11, 2012. (Id.) Finally, the Service Center assessed a total of sixteen penalty weeks against Claimant. (Id.) Claimant appealed the Service Center's determinations, and a Referee held an evidentiary hearing, at which Claimant, a representative of the Department of Labor & Industry (Department), and fifteen witnesses for Employer testified.
Following the hearing, the Referee issued three decisions, all of which reversed the Service Center's determinations. (C.R., Item No. 15.) In her first decision, the Referee found Claimant to be eligible for benefits for the compensable weeks ending February 25, 2012, through March 31, 2012. The Referee reasoned that a June 18, 2012 decision of the Board, which was not at issue in the instant appeal and which found Claimant to be eligible for benefits beginning with the waiting week ending October 28, 2011, governed Claimant's eligibility for benefits for those claim weeks. In her second decision, the Referee determined that Claimant was eligible for benefits for the compensable weeks ending May 19, 2012, through June 23, 2012, because, inter alia, Employer had failed to prove that Claimant engaged in willful misconduct. In her third decision, the Referee determined that Claimant was eligible for benefits for the compensable weeks ending August 4, 2012, and August 11, 2012, because Claimant did not return to work prior to August 2012. The Referee also determined that no overpayment existed and no penalty weeks were applicable with regard to any of the weeks at issue in the three decisions.
See Section 509 of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 829 (prohibiting collateral attacks of eligibility determinations). Specifically, the Referee explained that because the Board's June 18, 2012 decision found Claimant eligible for benefits effective the waiting week ending October 28, 2011, and Claimant did not return to work until April 3, 2012, Claimant was also eligible for benefits for the compensable weeks ending February 25, 2012, through March 31, 2012. (C.R., Item No. 15.)
Employer appealed the Referee's decisions to the Board, which reversed. In so doing, the Board issued its own findings of fact and conclusions of law. The Board made the following findings:
As noted above, the Board issued three decisions in addressing Claimant's appeals. Although the Board noted in each that it consolidated the facts relevant to all three appeals for purposes of clarity, our review of the decisions reveals that they are identical to each other in their entirety. (C.R., Item No. 23.)
1. The claimant was last employed as a science teacher by the Mahanoy Area School District from 2004 at a final rate of $50,000 per year.
2. The claimant had previously taught physics in the high school. The claimant was assigned to teach seventh grade science for the 2011-2012 school year.
3. The claimant was suspended in October, 2011. The . . . Board . . . affirmed a Referee's decision granting benefits based on the circumstances surrounding that suspension.
4. The claimant was once again suspended effective February 21, 2012 until April 3, 2012.
5. The claimant was directed by the school principal not to teach physics in his seventh grade classes, as the material was not appropriate for middle school students.
6. The claimant used materials from a 1944 high school physics textbook in his seventh grade classes.
7. The claimant gave the same assignments to the seventh grade classes as to his high school classes.
8. The claimant admitted that he did not follow the Individualized Education Plan (IEP) for at least one of the students in his seventh grade classes.
9. The claimant returned to school at the conclusion of his suspension under an improvement plan.
10. After the claimant returned to the classroom, the employer received complaints from the students' parents about the claimant.
11. The employer asked students from each of the claimant's classes to write a statement indicating any concerns they had about the claimant's class.
12. The claimant told an African-American student that he would throw him into a black hole and that no one would see him.
13. The claimant blamed the African-American student for killing his plants while the claimant was on suspension. Another student was also responsible for the plants. The claimant said that he could not get angry at that student because he had "Justin Bieber hair."
14. The claimant called his classes "stupid" and "lazy" at various times.
15. The claimant told another student that he was "annoying."
16. If a student's parent complained about the claimant, the claimant informed the class of that.
17. The claimant continually got off topic, rather than teaching the assigned material.
18. The claimant raised his voice in class.
19. In large part, as a result of the students' comments, the claimant was again suspended and eventually discharged for immorality, intemperance, willful neglect of duty, persistent negligence in the performance of duties, and persistent and willful violation of the laws . . . of the Commonwealth of
Pennsylvania, as set forth in the [Public] School Code [of 1949 (School Code)].(C.R., Item No. 23.) The Board noted as a threshold matter that the issues that brought about Claimant's suspension in February 2012 and his subsequent discharge were not addressed in the Board's previous decision regarding Claimant's suspension in October 2011. The Board explained that the October suspension was for a different reason and that it would address the other disciplines subsequently given to Claimant.
20. The claimant stated to the Department that he was unemployed due to lack of work.
21. The claimant received $3384 in unemployment benefits to which he was not entitled for the weeks ending February 25, 2012 through March 31, 2012.
22. The claimant received $3384 in unemployment benefits to which he was not entitled for the weeks ending May 19, 2012 through June 23, 2012.
23. The claimant received $1128 in unemployment benefits to which he was not entitled for the weeks ending August 4 and August 11, 2012.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 to 27-2702.
The Board found Employer's witnesses, particularly the students representing all three of Claimant's seventh grade classes, credible in their consistent testimony about what occurred in Claimant's classroom. The Board explained that Claimant's behavior toward those students, as set forth in the findings of fact, was in violation of the standards set forth in the School Code. The Board further explained that Employer's other witnesses testified to multiple directives given to Claimant that he was not to teach high-school level physics to the seventh grade students and that he was to follow special needs students' IEPs in accordance with Employer policy and state law. The Board determined that Claimant admitted to violating both of those directives. The Board, therefore, concluded that Claimant's continued pattern of behavior, even after previous discipline, amounted to willful misconduct. Consequently, the Board denied Claimant unemployment compensation benefits under Section 402(e) of the Law.
The Board further concluded that Claimant had three separate fault overpayments, totaling $7,896, that were subject to recoupment under Section 804(a) of the Law. The Board essentially determined that Claimant was not forthcoming with the Department because Claimant knew the reason for his separation, but provided the Department with a different reason for the separation. The Board concluded that the overpayments were the result of Claimant's own fault. The Board also assessed a total of sixteen penalty weeks against Claimant. Specifically, the Board found the assessment of eight penalty weeks for each of the set of weeks ending February 25, 2012, through March 31, 2012, and the set of weeks ending May 19, 2012, through June 23, 2012, to be proper. Claimant then petitioned this Court for review.
On appeal, Claimant argues, in essence, that the Board erred in reversing the Referee's credibility determinations and in concluding that Claimant engaged in willful misconduct. Claimant also argues that the Board erred in assessing penalty weeks against Claimant.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
We first address Claimant's argument that the Board erred in reversing the Referee's credibility determinations. Citing Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), Claimant argues that the Board does not have the power to arbitrarily and capriciously disregard the findings of a referee after the referee has listened to the testimony of the witnesses and observed their demeanor. Claimant argues that the Board lacked the requisite justification to reverse the Referee's credibility findings as to the students who testified at the hearing. Claimant argues that the Board improperly made conclusory statements about witness credibility without explanation and, unlike the Referee, did not observe the students' demeanor when they testified.
Claimant also argues that the Board disregarded the fact that a student admittedly falsified a statement provided to administrators regarding an allegation that Claimant had inappropriately touched a student. Upon a review of the record and the Board's decision, however, it is clear that the Board did not rely upon this aspect of the student's statement in rendering its decision.
In an unemployment compensation case, the Board is the ultimate fact finder and is empowered to make credibility determinations. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 270, 501 A.2d 1383, 1385 (1985). In making the credibility determinations, the Board "may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982). The appellate court's duty is to examine the testimony in the light most favorable to the party in whose favor the Board has found, giving that party the benefit of all inferences that can logically and reasonably be drawn from the testimony. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). Moreover, this Court has previously explained:
The Treon holding was . . . distinguished by the Supreme Court in the [Peak decision]. In Peak the Supreme Court addressed a similar argument that Treon requires the Board to defer credibility determinations to the referee or explain why it refused to adopt them. The Court rejected this argument, distinguishing the Treon holding:
Treon involved the Board's rejection of a referee's finding based on uncontradicted evidence. Here, the evidence of appellant's misconduct was conflicting. Appellant's more general argument disguises an attack on the settled interpretation of Section 504 of the Act, . . . which we have consistently held makes the Board the ultimate finder of fact with the power to substitute its judgment for that of its referees on disputed facts. Without a legislative change in this section of the law, we are not inclined to disturb its settled meaning.
Thus, it is clear from Peak that the applicability of Treon has been limited to cases in which there is uncontradicted evidence, and that the Board retains its power to make its own credibility determinations on disputed issues of fact.
. . . .
. . . [I]t is clear from the Peak case that the Board is not required to give its reasons for reversing a referee's decision where there has been conflicting evidence presented.Brocker Mfg. & Supply Co. v. Unemployment Comp. Bd. of Review, 504 A.2d 413, 413-14 (Pa. Cmwlth. 1986) (footnote omitted) (quoting Peak, 509 Pa. at 269-70, 501 A.2d at 1385). "Furthermore, the law is well-settled that the Board, as the ultimate factfinder, need not observe the demeanor of witnesses in order to make credibility determinations." Cnty. of Dauphin v. Unemployment Comp. Bd. of Review, 637 A.2d 699, 702 (Pa. Cmwlth. 1994).
Here, the Board chose to accept the testimony of Employer's witnesses, particularly the students representing all three of Claimant's seventh grade classes, as credible. Because the parties presented conflicting evidence in this matter, the Board was not required to explain its decision to reverse the Referee's credibility determinations. Nor was the Board required to observe the witnesses' demeanor in making its credibility determinations. Thus, the Board did not err in reversing the Referee's credibility determinations.
We next address Claimant's argument that the Board erred in concluding that Claimant engaged in willful misconduct. In support of his position, Claimant first reiterates his challenge to the Board's credibility determinations. Claimant further argues that the Board's error is evident because it adopted most of the Referee's findings and simply re-characterized certain facts to conform to the Board's conclusions of law. Specifically, Claimant notes that the Board characterized its finding that Claimant deviated from a student's IEP as evidence of willful misconduct, despite the Referee's contrary finding based on Claimant's testimony that he used his professional judgment when he made minor, inconsequential changes to the IEPs. Claimant also argues that the Board altered the Referee's findings when it found that Claimant admitted to violating directives regarding curriculum. Claimant contends that the Referee correctly concluded that Claimant did not deliberately violate work rules and that his actions did not rise to the level of willful misconduct, as Claimant testified that Employer gave him vague directives regarding the curriculum and that he determined that teaching physics concepts was necessary for students' comprehension of the broader lesson. Claimant argues that the Referee's characterization of Claimant's actions correctly demonstrates that Claimant earnestly tried to comply with Employer's directives and simply fell short of Employer's performance expectations.
Claimant's arguments merely amount to a contention that the Referee's factual findings and credibility determinations should control, and that the Board's findings and credibility determinations to the contrary are in error. For the reasons already explained herein, this contention is without merit. Moreover, a comparison of the findings of the Board and Referee reveals that the Board did not simply adopt and re-characterize the facts as found by the Referee, particularly with respect to the facts that address the issue of willful misconduct. Instead, the Board made entirely new and different findings in this regard. Thus, we reject Claimant's arguments.
Claimant also contends that Employer failed to meet its burden to prove willful misconduct. Specifically, Claimant argues that Employer's student witnesses either failed to specify the time period during which the alleged misconduct occurred or referred to a time period not at issue in this appeal. Claimant also argues that certain testimony from Claimant's students contradicts the Board's findings as to Claimant's willful misconduct and shows that Claimant performed his job duties to the best of his ability. Moreover, Claimant argues that he did not deliberately violate any work rules, and that Employer simply caved to disgruntled parents' demands with regard to Claimant's classroom instruction, in addition to imposing ever-changing expectations.
Claimant also denies that Claimant called students names, made racially insensitive remarks, and referred to entire classes using derogatory terms. Claimant notes that the Referee found insufficient evidence to support these allegations of Employer, discrediting the testimony of one student that Claimant was mean, called students names, and yelled at students. Additionally, Claimant again points out the falsified statement made by a particular student in support of his argument.
To the extent that Claimant's argument constitutes a substantial evidence challenge to the Board's findings that Claimant called students names, made racially insensitive remarks, and referred to entire classes using derogatory terms, we reject such an argument. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board'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. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor, 474 Pa. at 355, 378 A.2d at 831. The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984). "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). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Here, the testimony of Claimant's students, which was admitted over Claimant's objection, reveals that Claimant called individual students and/or classes as a whole "stupid," "lazy," and "annoying." (C.R., Item No. 10, at 41-42; C.R., Item No. 12, at 9, 33, 36, 39, 57-58, 64.) Moreover, multiple students testified that Claimant discussed throwing an African-American student into a black hole and said that no one would see him there. (C.R., Item No. 12, at 9, 22, 33, 39, 52, 57-58.) The students' testimony, which the Board chose to credit, provides substantial evidence to support the Board's findings in this regard. Moreover, as stated earlier, the Board, in rendering its decision, did not rely upon the statement that one student admitted to falsifying. Finally, the fact that the Referee found insufficient evidence to support these allegations is irrelevant, as the Board is the ultimate fact finder and there is substantial evidence in the record to support the disputed findings.
Section 402(e) of the Law provides, in part, that an employee shall be ineligible for compensation for any week in which "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." The employer bears the burden of proving that the claimant's unemployment is due to the claimant's willful misconduct. Walsh v. Unemployment Comp. Bd. of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). The term "willful misconduct" is not defined by statute. The courts, however, have defined "willful misconduct" as:
Whether or not an employee's actions amount to willful misconduct is a question of law subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).
(a) wanton or willful disregard for an employer's interests; (b) deliberate violation of an employer's rules; (c) disregard for standards of behavior which an employer can rightfully expect of an employee; or (d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Grieb v. Unemployment Comp. Bd. of Review, 573 Pa. 594, 600, 827 A.2d 422, 425 (2003).
Here, the Board did not err in concluding that Claimant engaged in willful misconduct. With regard to the claim weeks ending February 25, 2012, through March 31, 2012, the Board found that Claimant was suspended from February 21, 2012, until April 3, 2012. (Finding of Fact (F.F.) no. 4.) A review of the Board's decision and the record indicates that this suspension resulted from Claimant teaching inappropriate material to his seventh grade students and failing to follow special needs students' IEPs in violation of Employer's directives. (C.R., Item No. 23; C.R., Item No. 12, at 119-25 and Employer's Exhibit 2.) An employee's refusal or failure to follow a specific order by his employer can constitute willful misconduct. See Devine v. Unemployment Comp. Bd. of Review, 429 A.2d 1243, 1224 (Pa. Cmwlth. 1981). To establish whether an employee's non-compliance rises to the level of willful misconduct, the reasonableness of the employer's demand and the reasonableness of the employee's refusal must be examined. Dougherty v. Unemployment Comp. Bd. of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 1996); Devine, 429 A.2d at 1224. The burden of proving the reasonableness of the demand rests with the employer. See Devine, 429 A.2d at 1224. The burden then shifts to the claimant to prove good cause for his refusal by demonstrating that his non-compliance was a reasonable response. See id.
Here, Employer's directives were reasonable, as the Board found that the high school physics material was not appropriate for middle school students and Claimant was directed to follow the IEPs in accordance with Employer policy and state law. Although the Board did not address whether Claimant's actions in violating these directives were reasonable, it appears from Claimant's brief that he taught physics concepts to his seventh grade classes for purposes of the "students' comprehension of the broader lesson" and that he "used professional judgment when he made minor inconsequential changes to IEPs." (Petitioner's Br. at 14-15.) We conclude that these reasons do not justify Claimant's failure to comply with Employer's directives. Thus, the Board did not err in concluding that Claimant's actions in failing to comply with Employer's directives constituted willful misconduct.
It does not appear from the record that Employer provided its policy requiring that its employees follow students' IEPs. Nevertheless, Joie Green, Employer's Superintendent, testified that an IEP "is a specially designed instruction for students that have special needs," and that it is "required by law for a teacher to follow those specific needs that a child has." (C.R., Item No. 10, at 25.) Brandy Paul, Director of Special Education for Employer, also testified that teachers are legally obligated to follow IEPs. (C.R., Item No. 12, at 71.) We note that under the Federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485, states receiving federal assistance are required to provide all handicapped children with a free appropriate public education. See 20 U.S.C. § 1412(a)(1). A "free appropriate public education" means special education and related services that are provided at public expense and supervision, which meet the standards of the state educational agency and are provided in conformity with an IEP. 20 U.S.C. § 1401(9).
As to the claim weeks ending May 19, 2012, through June 23, 2012; August 4, 2012; and August 11, 2012; the Board found that upon Claimant's return to school after his suspension from February to April 2012, Employer asked Claimant's students to write a statement indicating any concerns they had about Claimant's class. (F.F. nos. 9, 11.) The Board further found that, largely as a result of the students' comments regarding Claimant's behavior towards his students, which behavior the Board outlined in its findings, Employer again suspended and eventually discharged Claimant. (C.R., Item No. 23.) This behavior included Claimant calling his students "stupid," "lazy," and "annoying;" continually getting off topic; raising his voice in class; making inappropriate comments to an African-American student; and informing his class when a student's parent complained about him. (F.F. nos. 12-18.)
Regardless of whether Claimant violated any work rule or directive of Employer during this time period, Claimant's behavior as outlined in the Board's findings certainly exhibits a disregard for the standards of behavior that an employer can rightfully expect of an employee. As to Claimant's argument that Employer's student witnesses either failed to specify the time period during which the alleged misconduct occurred or referred to a time period not at issue in this appeal, we note that irrespective of when Claimant made the inappropriate comments to the students, it is clear that Employer received the student comments after Claimant's return to work, and subsequently suspended and fired Claimant largely because of those comments. Thus, the Board likewise did not err in concluding that Claimant engaged in willful misconduct in this respect.
Notably, the record indicates that Employer did not become aware of Claimant's inappropriate comments to his students until the Spring. (C.R., Item No. 10, at 24.) The record also indicates that the student comments, which were admitted into the record over Claimant's objection, were written on April 25, 2012. (C.R., Item No. 12, Employer's Exhibits 1 and 3.)
Finally, we address Claimant's argument that the Board erred in assessing penalty weeks against Claimant. Relying upon our decision in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), Claimant argues that the Board erred when it relied upon testimony from Susan Bitterman, a UC claims examiner who testified on behalf of the Department. The Board relied upon Ms. Bitterman's testimony in concluding that Claimant misrepresented his reason for separation and, consequently, in assessing penalty weeks against Claimant. Claimant argues that the Referee excluded Ms. Bitterman's testimony regarding her method for determining whether the Department issued an overpayment as inadmissible hearsay evidence, based on Claimant's objection. Claimant further argues that there is no competent record evidence to support the Board's determination that Claimant was not forthcoming with the Department as to the reason for his separation from employment and, thus, the Board's assessment of penalty weeks was in error.
In Walker, this Court set forth the following rule:
(1) Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding of the Board. (2) Hearsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of the Board, [i]f it is corroborated by any competent evidence in the record, but a finding of fact based [s]olely on hearsay will not stand.
At the outset, we conclude that the Referee improperly excluded Ms. Bitterman's testimony as inadmissible hearsay evidence. With regard to the fault overpayments and penalty weeks, Ms. Bitterman testified at the hearing that "when . . . Claimant called the [Pennsylvania Teleclaims (PAT)] System, he indicated that he was off due to lack of work, rather than being on suspension. . . . And that is where the fault . . . overpayment . . . comes in with the penalty weeks. (C.R., Item No. 10, at 13.) Ms. Bitterman further testified that she received the information that Claimant had indicated that he was off due to lack of work from the claim record. (Id. at 13-14.) Ms. Bitterman indicated through her testimony that a computer automatically generates a document based on Claimant's call into the PAT system, which is how the information is included in the claim record. (Id. at 14.) Claimant objected to this testimony based on hearsay, and the Referee sustained the objection. (Id. at 13-14.)
According to Employer, who intervened in this matter, the PAT system "is an automated self-service system used by [the Department] to allow . . . claimants to file biweekly unemployment claims by responding to PAT's questions by selecting from several choices." (Employer's Br. at 26 n.11.)
A hearsay statement is "a statement that . . . the declarant does not make while testifying at the current trial or hearing . . . and . . . a party offers in evidence to prove the truth of the matter asserted in the statement." Pa. R. Evid. 801(c). The matter asserted in this instance is that Claimant was unemployed because of a lack of work. This statement was offered to show the basis for Ms. Bitterman's determination of fault overpayments and assessment of penalty weeks (i.e., that Claimant misrepresented the reason for his unemployment), and not to show that Claimant was actually unemployed due to lack of work. Because the statement was not offered to show the truth of the matter asserted, it was not hearsay, and, as such, the Walker rule does not apply to prevent the testimony from supporting the Board's findings.
In light of the above conclusion, we further conclude that the record evidence does support the Board's determination that Claimant was not forthcoming with the Department as to the reason for his separation from employment. The Board found that Claimant stated to the Department that he was unemployed due to lack of work. (F.F. no. 20.) Although the Board did not elaborate on the basis for its finding in this regard, Ms. Bitterman's testimony as described above constitutes substantial evidence to support this finding. The Board also determined, and Claimant does not dispute, that Claimant was aware that his suspensions and ultimate discharge were the reasons for his separation from work. (C.R., Item No. 23.) These findings support the Board's determination that Claimant was not forthcoming with the Department as to the reason for his separation from employment.
Notably, at the hearing before the Referee, Claimant denied that he had indicated to the Department that his separation was due to lack of work, and he instead indicated that his unemployment was due to his suspension. (C.R., Item No. 14, at 40-41.) --------
As noted above, Section 801(b) of the Law provides that penalty weeks may be assessed if a claimant makes a statement knowing that it is false or knowingly fails to provide material facts to obtain or increase any compensation or other benefits under the Law. The Board determined that Claimant was not forthcoming with the Department as to his reason for separation, because Claimant informed the unemployment compensation authorities that his separation was due to lack of work when he was aware that such information was false. Given this determination, which is supported by the record, the Board did not err in assessing penalty weeks against Claimant.
Accordingly, we affirm the orders of the Board.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 9th day of April, 2014, the orders of the Unemployment Compensation Board of Review are hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
Walker, 367 A.2d at 370 (citations omitted).