IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sgt. Craig

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sgt. Craig Troy Bennett,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
BEFORE:
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No. 1323 C.D. 2013
Submitted: December 27, 2013
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY
FILED: February 24, 2014
Sergeant Craig Troy Bennett (Claimant), pro se, petitions this Court for
review of the Unemployment Compensation Board of Review’s (UCBR) July 8, 2013
order affirming the Referee’s decision denying unemployment compensation (UC)
benefits under Section 402(e) of the UC Law (Law).1 The sole issue before this
Court is whether Claimant committed willful misconduct. Upon review, we affirm.
Claimant has been employed as a full-time intake Property Sergeant with
the Pennsylvania Department of Corrections (Employer) for over 20 years. Employer
has a Code of Ethics which enumerates its overall policy guidelines. Employer Ex. 2.
Section B of Employer’s Ethics Code sets forth Employer’s specific rules and
regulations. The relevant provisions are as follows:
1
802(e).
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
B. Specific Rules and Regulation- [Employer]
....
6. There shall be no fraternization or private relationship of
staff with inmates, parolees or members of their families.
This includes, but is not limited to, trading, bartering or
receiving gifts, money and favors from the inmate or the
inmate’s friends, relatives or representative[s]. Moreover,
employees are not to deliver gifts or money to inmates’
friends, relatives or representatives.
7. The personal property of inmates will be handled with
extreme care and disposed of only by properly designated
authority in a matter designated by official [Employer]
policy. Similarly, no employee may assume the right of
ownership of property owned by fellow employees, the
State or by inmates; theft or abuse of property or equipment
is prohibited.
....
9. Lawful orders by a supervisor to a subordinate must be
executed promptly and faithfully by the subordinate even
though the employee may question the wisdom of such
order. The privilege of formally appealing the order may be
done at a later date through either the supervisory command
structure, civil service appeal, or the grievance machinery.
....
29. All employees shall comply and cooperate with internal
investigations conducted under the authority of [Employer],
and respond to questions completely and truthfully[.]
Procedure in cases that may result in criminal prosecution
will include those rights accorded to all citizens of the
Commonwealth.
30. No employee shall permit an inmate to be in control or
exercise authority over other inmates.
31. Corrections officers are to read, sign and fully comply
with all post orders.
2
Id. at 3-4, 6. “Any employee who violates the provisions of [Employer’s Ethics]
Code shall be subject to immediate disciplinary action by the appointing authority.”
Id. at 6.
Employer issued revised/reviewed post orders on the authority of the
State Correctional Institution at Chester’s (SCI-Chester) Superintendent on or about
June 30, 2012, which provides, in part, that assigned officers are responsible for
familiarizing themselves with post orders on all posts worked, that post orders shall
be read and the appropriate forms signed to indicate knowledge and compliance with
the post orders, and that post orders should be reviewed as often as necessary, but not
less than every six months. Employer Ex. 4. The Property Area’s post orders state:
Maintain proper security within the Intake/Property Area
by:
1. Limit[ing] the number of inmates present for the purpose
of receiving property to ten (10).
2. Providing direct and constant supervision of inmate
workers assigned to the area.
3. Utilizing the inmate holding cells during strip-searches
and property processing.
4. Conduct[ing] daily pat-searches in full view of CCTV
cameras. Pat-searches will be conducted whenever
inmate workers enter or exit except if under escort.
Conduct at least two (2) periodic strip-searches of
inmate workers per week. Their (sic) will be two (2)
Officers present for these searches and the searches will
be documented in the Sergeant’s log book.
Id. at 9.
The Property Area’s post orders require the Property Sergeant to
“[e]nsure all property released with the discharged inmate is properly inventoried and
logged prior to release.” Id. at 10. The post orders also specifically provide in
relevant part:
3
K. Reception of Parole Violators:
....
5) Parole Violator shall be strip searched [and] any injuries
observed shall be documented in two sets of photographs
taken, one set forwarded to medical, the second set
forwarded to Shift Commander and a DC 121 part 3
submitted.
....
8) Any item to be shipped home by the inmate shall be at
the inmate[’s] expense and on the next regular business day.
Valuables (watch, ring, ear ring, etc.) or any wallet
containing miscellaneous items will be documented on a
confiscation slip and placed in the roll top safe pending
final disposition (destroyed or sent out).
Any identification or birth certificates/social security cards
will be placed [in] an envelope addressed to inmate records
and placed in the safe in the control lobby. Any checks or
cash will be documented on a confiscation slip, placed in an
envelope addressed to inmate accounting and place[d] in the
safe [in] the control lobby. Any items placed in either the
safe shall be logged in the log book by the Commissioned
Officer in charge of the intake.
Id. at 17-18. Claimant was or should have been aware of Employer’s Ethics Code
and Property Area post orders issued for SCI-Chester. In the past, Claimant had been
suspended from his employment for violation of Employer’s Ethics Code and/or post
orders.
On September 5, 2012, a razor knife, which is considered major
contraband, was discovered in the Property Area where Claimant worked. Employer
conducted an investigation to determine how the razor knife came into the Property
Area, which included observing surveillance video taken from approximately nine
cameras located within the Property Area. Notes of Testimony, April 10, 2013 (N.T.)
at 41. Video surveillance revealed that on September 12, 2012, inmate workers
concealed commissary items belonging to another inmate in Claimant’s presence.
4
Video surveillance also showed that on September 5, 2012, Claimant left an inmate’s
money on the property counter and did not secure the property in the roll top safe.
Further, video surveillance exposed that Claimant used available inmate holding cells
as storage lockers to store inmate property rendering them unavailable for the
reception of returning parole violators. Moreover, video surveillance imparted that
on September 5, 2012, and September 10, 2012, Claimant permitted inmate workers
to search, inventory and pack other inmate’s property. Id. at 56. In addition, video
surveillance demonstrated that on September 9, and September 10, 2012, Claimant
permitted inmate workers to file documents in the office cabinets. Id. at 52. Finally,
video surveillance revealed that on September 12, 2012, Claimant provided
commissary items belonging to one inmate to other inmate workers.
During the course of Employer’s investigation, Employer determined
that Claimant was not truthful in responding to questions posed to him. Specifically,
Claimant denied allowing inmates to file documents in his office cabinets.
In
addition, Claimant stated that he strip-searched his workers randomly and noted such
in his log book, and that when property was brought to his area he searched it and
compared the new Form 153 to the old Form 153 (used by Employer to document
property). Id. at 53-54. Claimant maintained that he did not sign his post orders
initially upon receipt because he disagreed with some of the information contained
therein. Id. at 57.
Employer concluded its investigation on or about October 31,
2012.
Employer held a pre-disciplinary conference concerning Claimant’s
December 10, 2012 actions at which Claimant, various Employer officials, and a
Claimant witness appeared and provided information. As a result of the conference,
Employer suspended Claimant, with a final warning, for 15 working days beginning
January 23, 2013, which was scheduled to end on February 12, 2013. For approved
and unrelated reasons, Claimant did not return to work until February 18, 2013.
5
Claimant applied for UC benefits for the 15 days he was suspended. On
March 6, 2013, the Scranton UC Service Center determined that Claimant was
ineligible for benefits under Section 402(e) of the Law. Claimant appealed and on
April 18, 2013, a Referee hearing was held. On May 7, 2013, the Referee mailed her
decision affirming the UC Service Center’s determination. Claimant appealed to the
UCBR. The UCBR affirmed the Referee’s decision. Claimant appealed to this
Court.2
Claimant stated in his Petition for Review:
Under Unemployment Compensation Law section 402(e)
concerning Willful Misconduct[] [a]n employe[e] who is a
below average performer and has made numerous costly
mistakes ‘according to[] the employer’ would still be
entitled to benefits since his inability to perform the job
does not fall under Willful Misconduct therefore ‘Please
make me Whole’ regarding this claim!!!
Petition for Review at 2. However, Claimant’s sole argument, as stated in his brief,
is as follows: “Th[e] cha[r]ges were just made up and levied against [him] to[] harass
and attempt to ass[ass]inate [his] 20 year character; in [r]etaliation for [his] EEOC,
PHRC, Dept. of Labor and PSCOA filings against SCI[-]Chester.” Claimant Br. at 8.
This Court has held:
‘[W]here a Claimant fails to include an issue in his petition
for review, but addresses the issue in his brief, this court has
declined to consider the issue, since it was not raised in the
stated objections in the petition for review, nor ‘fairly
comprised therein’ in accordance with Pa. R.A.P. [sic]
1513(a).’ [Pa.R.A.P.] 1513(d) requires that a Petition for
Review contain a general statement of objections, and
provides that the statement of objections ‘will be deemed to
include every subsidiary question fairly comprised therein.’
2
This Court’s review is limited to determining whether the findings of fact were supported
by substantial evidence, whether constitutional rights were violated, or whether errors of law were
committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
6
Additionally, when a party appeals, but fails to address an
issue in the brief, the issue is waived. This Court, in
McDonough [v. Unemployment Comp. Bd. of Review, 670
A.2d 749 (Pa. Cmwlth. 1996)] held that an issue raised in
the Petition for Review but not addressed in the petitioner’s
brief on appeal, was waived, and that an issue argued in the
brief on appeal, but not raised in the petitioner’s Petition for
Review or ‘fairly comprised therein,’ would also not be
considered.
Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth.
2006) (citations omitted). Here, the issue raised in Claimant’s Petition for Review is
not addressed in Claimant’s brief, and the argument addressed in Claimant’s brief is
not raised or fairly comprised in Claimant’s Petition for Review. Consequently,
Claimant has waived all of his issues.
Even if the argument addressed in Claimant’s brief had been raised in
his Petition for Review, there are no facts of record to substantiate his argument or
legal authority to support his claims. Moreover, Claimant’s “one sentence does not
constitute a developed, reasoned, supported, or even intelligible argument.
[Therefore,] [t]he matter is waived for lack of development.” Commonwealth v.
Spotz, 610 Pa. 17, 80 n.21, 18 A.3d 244, 281 n.21 (2011).
Notwithstanding, the law is well established that “the [UCBR] is the
ultimate fact-finder. The [UCBR]’s findings are conclusive on appeal so long as the
record, taken as a whole, contains substantial evidence to support those findings. Of
particular import, [f]indings of fact made by the [UCBR], which are not specifically
challenged, are conclusive upon review.” Hessou v. Unemployment Comp. Bd. of
Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (citations and quotation marks
omitted; emphasis added).
Because Claimant failed to challenge any specific
findings of fact, the UCBR’s factual findings are conclusive in the instant matter.3
3
Here, the UCBR adopted the Referee’s findings of fact and conclusions of law; hence, the
Referee’s findings are conclusive.
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Even if Claimant had challenged the UCBR’s findings, we would affirm
the UCBR’s order for the following reasons:
[I]ssues of credibility are for the [UCBR] which may either
accept or reject a witness’ testimony whether or not it is
corroborated by other evidence of record. Findings of fact
are conclusive upon review provided that the record, taken
as a whole, contains substantial evidence to support the
findings. This Court must examine the evidence in the light
most favorable to the party who prevailed before the
[UCBR], and to give that party the benefit of all inferences
that can be logically and reasonably drawn from the
testimony.
Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth.
2011) (citations omitted). The UCBR was entitled to make credibility determinations
and found Employer’s witnesses credible and determined Claimant’s “witness’s
testimony was so inconsistent as to render it entirely incredible . . . .” Referee Dec. at
4. “We are bound by [those] credibility determinations.” Grand Sport Auto Body v.
Unemployment Comp. Bd. of Review, 55 A.3d 186, 192 (Pa. Cmwlth. 2012). Further,
the evidence offered by Employer’s witnesses, Field Human Resource Officer Dawn
Casson and Internal Security Lieutenant Thorton Felder, was sufficient to support the
UCBR’s findings that Claimant violated Employer’s work rules and engaged in
willful misconduct.4
In addition, the UCBR found that “none of the evidence
presented by the claimant’s witness supports the claimant’s contention that he did not
violate the Code of Ethics and/or post order as alleged.”
Referee Dec. at 4.
Accordingly, substantial record evidence supports the UCBR’s conclusion that
Claimant’s conduct constituted willful misconduct.
4
Field Human Resource Officer Dawn Casson testified regarding the verification of the
background information, including but not limited to Claimant’s starting and ending dates,
suspensions, and specific Ethics Code violations. See N.T. at 18-30. Internal Security Lieutenant
Thorton Felder conducted the fact finding investigation that led to Claimant’s suspension, i.e.,
including but not limited to the reviewing of the surveillance videos, and testified thereto. See N.T.
at 34-60.
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For all of the above reasons, the UCBR’s decision is affirmed.
___________________________
ANNE E. COVEY, Judge
Judge Leavitt concurs in the result only.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sgt. Craig Troy Bennett,
Petitioner
v.
Unemployment Compensation
Board of Review,
Respondent
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No. 1323 C.D. 2013
ORDER
AND NOW, this 24th day of February, 2014, the Unemployment
Compensation Board of Review’s July 8, 2013 order is affirmed.
___________________________
ANNE E. COVEY, Judge

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