Appleyard v. UCBR - Cmwlth. Court - January 8, 2009 - unreported en banc 4-3 decisionhttp://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/653CD08_1-8-09.pdf
Pharmacy technician held guilty of willful misconduct for failure to run prescription through scanning device, even absent evidence or finding that she acted either intentionly or mistakenly. The UCBR found that she intentionally skipped the scanning process to save time, in a rush situation. Given that, the court held that it was within the power of the Board to infer that claimant's actions were willful and not negligent or inadvertent.
"Given that no one other than Claimant knew whether she intentionally or mistakenly failed to follow the procedure, we cannot say the Board’s inference was unreasonable. Thus, given the Board’s role as the ultimate finder of fact, we are bound by the Board’s reasonable inference that Claimant deliberately violated the scanning policy because she was in such a hurry. In short, Claimant’s conduct, as a matter of law, constituted willful misconduct."Dissent
- There was a strong dissent, which cited employer testimony, admitting specifically ("I can't answer that.") that it could not determine, from what it knew, whether claimant had refused to follow the procedure or forgot to do so, or whether claimant's actions were unintentional and inadvertent."
" Employer’s witness was unable to testify as to whether Claimant deliberately violated Employer’s scanning rule. In fact, Employer’s witness stated that he hoped Claimant’s violation of the rule was not intentional. Such testimony is ironic given Employer’s burden to prove that Claimant’s violation of the scanning policy was intentional.
"An employer cannot establish willful misconduct merely by showing that a claimant committed a negligent act. Navickas v. UCBR
, 567 Pa. 298, 787 A.2d 284 (2001). Thus, Employer could only meet its burden of proving a deliberate violation of the scanning rule through Claimant’s testimony. Claimant testified in her defense of the charge of willful misconduct that she grabbed the medicine without first scanning the bottle because she was “in a rush” to fill the prescription so that the delivery driver could leave on time.
"Claimant’s testimony establishes that her intention was to further Employer’s interest in seeing that customers receive their prescriptions in a timely manner.4 However, Claimant does not indicate whether, while in a rush to provide good customer service, Claimant deliberately skipped the scanning to save time or merely forgot about the relatively new scanning procedure. Thus, it is impossible to determine from Claimant’s testimony whether her violation of Employer’s scanning policy was intentional or negligent. The majority states, “Significantly … Claimant did not respond that she had forgotten to scan the medicine bottle or that her failure was inadvertent.” However, it was not Claimant’s burden to prove that her violation of the scanning policy was unintentional."
" Employer had to prove that Claimant deliberately violated the scanning rule, but Employer never asked Claimant whether she gave any thought to the rule while she was rushing to fill the prescription. Thus, I submit that Employer failed to meet its burden of proof.