*1 Cоoper at 1712. Dr. testified that she Petitioner, ZIMMERMAN, Sandra flap sheep’s from the
removed of skin supply flap “the face because blood v. damaged, destroyed, has been and that off, flap up dying falling of skin ends UNEMPLOYMENT COMPENSATION try to you pointless even if it. It’s suture REVIEW, BOARD OF it, and for it longer to suture it takes Respondent. you N.T. at heal when suture it.” 28-29. Pennsylvania. Court of Commonwealth Cooper per- opine Dr. did not that she flap formed cosmetic or that the surgery Argued Sept. 2003. ap- purposes of skin was removed for Clearly, flap pearance. of skin was Decided Nov. 2003. and not removed for medical reasons
improve appearance sheep.
Accordingly, reject any we contention that
the evidence demonstrates that cosmetic performed on one of
surgery was
sheep. failed to demonstrate
Since evidence
beyоnd sheep that the reasonable doubt disfiguring6 requiring
suffered lacerations
multiple surgery, sutures or cosmetic we judgment
reverse of sentence. Judge
Senior FLAHERTY concurs only.
the result
ORDER NOW, November, day
AND 25th
2003, the order of the Court Common County
Pleas of Chester
above-captioned hereby RE- matter
VERSED. addition, Although by appellant, we see no surgery.” not raised the Common-
metic ignores the fact wealth's construction that the lacerations evidence in the record irregularity in "defect” is defined as an disfiguring. were spoils appearance flaw surface New Interna- or blemish. Webster’s Third Dictionary at tional *2 Davies, Lancaster, peti-
Thomas R. for tioner. Jordan, Harrisburg, respon-
Paul R. dent. COLINS, Judge,
BEFORE: President SMITH-RIBNER, Judge, PELLEGRINI, FRIEDMAN, Judge, LEADBETTER, COHN, Judge, Judge, LEAVITT, Judge, and Judge. BY Judge OPINION LEAVITT. (Claimant) petitions Zimmerman Sandra adjudication for review of an of the Unem- Compensation ployment Board of Review (Board) unemploy- that denied Claimant so, ment In doing benefits. the Board affirmed the determination that Referee’s Claimant’s failure to volunteer that she nоn-compete agreement had previous employer was willful miscon- and, thus, ineligible duct rendered her unemployment compensation receive bene- fits.1 reverse the Board. We 402(e) Unemployment employe ineligible compen- 1. Section Com- shall be An (Law), sation for week— pensation Law Act of December Ex.Sess., Second P.L. as amended, 802(e), (e) provides, unemployment § due 43 P.S. In which his the “non- to this case was began employment at enant relevant Lancaster, follows: compete” provides Penn- covenant. It Health Advanced Care worked as a schedul- sylvania, where she (c) employed I am Non-Compete. While Staffing Net- coordinator. Medical ing *3 rela- independent in an contractor by or (MSN) Health Advanced acquired work period of and for a tionship with MSN at which time in of Care October (12) of from the date twelve months including Claim- employees, required employment or inde- my termination of ant, “Agreement Regarding sign to an relationship with pendent contractor Information, Non-Competi- Confidential reason, agree I that I will any MSN (Agreement). tion Non-Solicitation” not, indirectly, principal, as a directly or and at-will em- For consideration of $10 contractor, employee, employer, agent, Agreement ployment, Claimant (other than as an partner, shareholder 25, 2000, day on the same on October of a 2% or less of the stock owner of to Certified presented which it was her. ca- corporation) any or in other public (C.R. ). Record at 15 — in, any perform solicit or pacity engage boilerplate docu- Agreement The competitive MSN Business work with suggested in multiple parts, as ment with (60) any sixty mile radius within keep to required title. Claimant its princi- I have been office to which MSN confidential (2) years within the two pally assigned Information” MSN’s “Confidential (the “Restricted prior to termination that includes all [which] Notwithstanding the fore- Territory”). keep confi- protect desires to MSN subparagraph, it provisions of this going obligated to ... or that MSN is dential agreed upon that ter- is understood and confidential, includ- third-parties keep mination, accept employment or a may I ing but not limited to “Trade Secrets” competi- engagement with a consulting the definition of that the full extent of Terri- within the Restricted tive concern term under-law. diversified; pro- tory whose business Agreement required C.R. at 15. that, employment or prior to such vided confi- keep these trade secrets Claimant to given MSN is consulting engagement, they public until become dential unless and wilting that I assurance reasonable informa- keep and to MSN’s “confidential not, month during will said twelve years for five after ter- tion” confidential Re- within the period, render services anywhere mination directly indirectly Territory stricted country. of such concern any line of business to a number agreed also Business. competitive with MSN that is example, she For restrictive covenants. further recited C.R. 17-8. employees to to induce MSN agreed not to recruit competitor and not work for a provision of this any event that months [i]n of twelve period clients for a MSN covenant] is [any restrictive paragraph,2 employment without after termination of unreasonable, modify may court cov- held The restrictive limitation. geographic were set the restrictive covenants 2. All of temporary suspension from his para- single, multi-part, multi-page with misconduct connected forth in a wоrk for willful work, irrespective whether or not graph, his "employment” as defined such work is act. such provision Regional Supervisor manner which identified MSN in an results enforceable restriction. as a reference. added). On December law firm MSN’s (emphasis
C.R. 18 As a coda to stating sent a clause, however, letter the reformation agreed that the restrictive covenants were you immediately are directed to resign reasonable and from Nurse Finders and other com- pany competes directly indirectly
will
prevent
me
earning
a live-
and to
forward confirmation
business,
in my
lihood
chosen
they
your resignation my
attention on or
impose
do not
hardship
undue
on me
before December
*4
they
injure
and that
will not
public.
the
14.
C.R.
also informed her that MSN
Id. Claimant was not given
copy
of the
“calculating
damages
was
the amount of
Agreement for her own reference or rec-
your
incurred as a result of
actions and
ords.
will
that
your resigna-
address
issue once
2, 2001,
On October
MSN terminated
tion has been confirmed.” The letter as-
employment.
Claimant’s
It had asked for
permitted
serted that she was not
to work
resignation,
but she
resign.
refused to
competitors
of MSN and claimed that
However, Claimant was advised that she
soliciting
she was
MSN clients.3
report
prospective
could
employers that
promptly
Claimant
Employer
informed
she had resigned from
and
MSN
that it
of MSN’s letter and was advised not to
would
her a
give
good reference.
“worry
Testimony
about it.”
of
Transcript
thereafter,
Shortly,
Claimant
inter-
(T.T. —).
gave Employer
copy
She
job
viewed for a
with Nursefínders of Cen-
letter,
of the
and she contacted
MSN for
tral
(Employer) located in copy
Agreement,
she received
which
Harrisburg, Pennsylvania. Employer did
by fax on December
On
ask
not
Claimant whether she had ever
day,
same
Claimant was termi-
protection,
trade secret
confiden-
by Employer
nated
for the stated reason
tiality,
non-solicitation or
not want to
get
did
involved
agreement, and Claimant did not volunteer
litigation. Employer
advised Claimant
the
Agreement.
existеnce of the
counsel,
did,
retain
which she
and further
problem
informed her
if the
and,
Claimant was
by Employer
hired
resolved,
MSN was
she
return to
could
3, 2001,
on December
began training
she
Employer.
work for
C.R. 13.
position
for her new
in Harrisburg. On
work,
day
this first
of
unemployment
Claimant was re-
Claimant then filed for
fill
quested
application,
out an
which
compensation
she
benefits with the Lancaster
alia,
(Job Center).
asked,
did. The application
inter
UC Service Center
The Job
you
“Have
ever been discharged
Employer
prove
or asked Center found that
did not
resign
position?”
from a
grant-
to which
willful
Claim-
misconduct
“Yes,
responded
ant
already
Employer appealed
MSN
ex-
ed her benefits.
decision,4
plained.”
on
application,
hearing
Also
Job
and a
was
Center’s
However,
vehemently
Application completed by
3. Claimant
denied this claim.
Em-
C.R.,
Indeed,
Claimant Ex. 5.
the evidence
ployer specifically identified Claimant’s rea-
day
belies the claim because
of
separation
employment as "Oth-
son for
from
being
she was still
trained.
er”
"Misconduct.” C.R. 6.
not
case,
pursued.
this claim of MSN was never
hir-
during the
ployer
conducted
a Referee. Neither Claim-
Employer
represented
ing process.
ant nor
hearing.
at
counsel
added).
Opinion,
(emphasis
Board
The Referee reversed the Job Center’s
violation
Board concluded that Claimant’s
determination.
Referee found that
misconduct
of this
constituted willful
Agree-
in violation
Claimant was
thus,
and,
for unem-
eligibility
barred her
Harrisburg of-
Employer’s
ment because
then
ployment compensation. Claimant
fice is
miles from the
office in
petitioned for
review.6
this Court’s
worked,
Lancaster
Claimant had
where
appeal
The sole issue on
is whether
purported
and the
to restrict
to inform
Claimant’s failure
her from
within 60 miles
Agreement at the time of her interview
Referee
found that
Lancaster. The
also
hire
willful misconduct.
constituted
dishonest,
her “actions
Claimant was
contends that
record
a dis-
were intentional and deliberate and
support
finding
the Board’s
regard
the standards
behavior
dеliberately
withheld
expect.”5
right
has
Employer never
because
*5
Opinion
Referee’s
at 2.
agree-
she had
an
asked whether
Board,
appealed
Claimant then
to the
Further,
compete.
not to
Claimant
ment
which affirmed the Referee’s determina-
joba
duty upon
that there is no
contends
tion. The
found
Board
to
the
of such
applicant
volunteer
existence
in-
deliberately
[t]he [Claimant
withheld
agree.
agreement.
an
We
[E]mployer regard-
formation from the
of
employer
An
bears the burden
ing
non-compete
her
with
in
proving
employee engaged
that an
will
threat-
The
actions
[MSN].
[Claimant’s
behavior to constitute
litiga-
to
ful misconduct. For
engulf
[E]mployеr
ened
the
misconduct,
employee’s
the
behavior
separation
tion with
her
was willful
[MSN]
(1) the
and willful
clearly
own fault. The
must evidence
wanton
[CJlaimant
her
(2)
interest;
employer’s
of
appraise
disregard
had a
the
the
[E]m-
to
[sic]
attempted testimony
Employer’s
han-
about
is critical of the Referee’s
ant’s
argues
employees
to work
dling
hearing,
of
at
of
allowed
the Board
treatment
other
comport-
length
hearing
agreed
spite
having
some
that Claimant's
of
end,
First,
process.
with
To
it directs
hearsay.
hearsay
ed
due
admissi-
grounds of
is
Second,
regulation at
Pa.Code
hearings.
our attention to its
34
there
ble in administrative
101.21(a),
rule,
of
§
which addresses the duties
exceptions
hearsay
are numerous
appear pro
admissions,
se. The
referee where claimants
state-
as
that make such
such
regulation obligates
claim-
a referee to inform
judicial proceed-
even in a
ments admissible
right
of a
ant
to counsel and then
time,
permitted
ing.
At the same
Referee
testify
outcome
Employer's witness to
to the
examining
aid
and cross-ex-
[claimant]
witnesses,
ev-
MSN.
amining
give
of his discussion with
[claimant]
compatible
impar-
ery
assistance
scope
to determin-
6. Our
of review limited
tial
duties.
of its official
findings
determining
of
ing to
whether the
stan-
conduct falls short of this
Referee’s
evidence,
supported
substantial
facts
dard.
committed, or
Claimant;
were
whether
of law
errors
interrupted
chas-
The Referee
rights
(and
were violated.
whether constitutional
reading
remembering)
tised her
Agency
of the Administrative
Section 704
Agreement; quarreled with
terms of
Arnold,
Law,
704;
Unemploy
§
v.
Pa.C.S.
description
of
as
Claimant’s
Review,
(Pa.
We to the matter of Claim- prospective employer. Stan- evant to alleged duty ant’s to volunteer the exis- unemployment award of found dards Agreement. tence of the The Board benefits, however, must be compensation threatened to “en- Claimant’s actions contract, liability point perform subject to recognition 16. A tacit of this is seen in fact, express pecuniary resulting In reformation clause. non- the other for the loss compete provisions frequently reformed person’s failure to the other from the third ” equity. Agreement as a matter of If the had Judge perform Technical Ser- the contract.’ form, not been it would vices, unconscionable Clancy, Inc. v. (2 likely years) be reformed as to the time (citations omitted). Employ- (Pa.Super.2002) miles) (60 geographic limits. held under this test. er could not be liable knowledge Employer had Since no may appropriate, in some circum- be Agreement, induce and it could not stances, keep pro- require office workers to nothing agreement that it knew to breach an sep- priety information confidential after their about. However, employment. that is aration Employer, in which it MSN sent a letter to case, because the not the issue here. In by Decem- requested Claimant’s termination reason, among Agreement is unenforceable It also advised that if ber others, consideration, of the lack of hired “aware” when it duty. is under no such party it could become a then short, litigation, should suit be filed. have a 18. To the extent that MSN would "engulf” Employ- right its understood that against Employer, which was cause of action against limited. Agreement, er in its action Claimant was pаrty to the it would be for not a rela- intentional interference contractual *9 i.e., dissent, proposed by the Commonwealth, 19.The standard who tions. "In this '[o]ne any job applicant to volunteer requiring a intentionally improperly interferes with might preclude "claimant ... performance of a contract between performing job” open-ended is as person by inducing [that] from and a third another causing person not to as the Board’s standard. otherwise the third Judge BY objective OPINION and clear order to avoid ad hoc DISSENTING PELLEGRINI. determinations. majori- from the respectfully I dissent employer,
The Board erred. The
Zimmerman
that Sandra
ty’s holding
duty
applicant,
not the
should bear the
(Clаimant)
unemployment
is entitled to
identifying
directly
issues that are
materi
compensation
though
benefits even
al to the decision to hire. To the extent
(Employ-
to disclose to Nursefinders
failed
concern,
er)
employer
may simply
an
has a
at
time she was interviewed for the
had executed a non-com-
applicant
position
ask whether an
has entered into
that she
that failure did
pete agreement because
any restrictive covenants and then make
not rise to the level of willful misconduct
its own evaluation of whether the cove
402(e)
under Section
material,
or enforce
nants
relevant
(Law).1
I
Law
While
rec-
Unemployment
able.
hold that
did not
We
ognize
majority’s antipathy
to restric-
demonstrating
meet
its burden of
covenants,
majority
looking
at
tive
separation
employment
from
Claimant’s
aggressive attorney
as an
these covenants
was the result of Claimant’s willful miscon
them,
employer
at
not as an
would look
duct.
did not have a
Claimant
pay
aggressive
who has to
the fees
volunteer
existence
attorneys.
during
by Employer,
her interview
and we
began
employment
establish,
time,
decline to
for the first
3, 2001,
Employer on December
as a client
any applicant
job
duty.20
for a
has such a
employment,
coordinator. Prior to that
reasons,
For the above
we reverse the
employed by
had been
Mediсal
order of the Board.
(MSN)
Staffing Network
from October
at
2000 until October
2001. While
MSN, however,
non-
ORDER
stipulated
compete agreement
NOW,
November,
day
AND
this 26th
MSN, she would not work for
leaving
after
Unemployment
the order of the
competitor
year
for one
or within a 60-
Board
Compensation
of Review dated June
office.2 Claimant
mile radius of MSN
above-captioned
matter is did not advise
of the non-com-
hereby
agreement during the interview or
pete
reversed.
"employment”
applicant
as defined in
20. This does not excuse an
from
such work is
material,
responding truthfully to
factual
this act ...
questions
job application.
Law,
on a
Deliberate
402(e)
43 P.S.
Under Section
long
policy
violation of a
work rule
has
802(e),
employee
ineligible
§
for unem-
been found to be "willful misconduct.” Al
ployment compensation
when his un-
benefits
Unemployment Compensation
temus v.
Board
discharge
work
is due to a
Review,
(Pa.Cmwlth.1996).
Whether subject non-compete agreement, it is disfavored courts irrelevant, against employer’s interests ex- it also does not matter and, pectations potential employee Em- potentially, whether Claimant non-compete agreement. in a ployer would have been successful disclose brought potential employee the Whether a is restricted lawsuit enforce agreement directly non-compete agreement. by non-compete goes All that matters existed, person employable is that such whether employers, positions made certain certain by hiring him or her to making upon to a In Navickas v. it incumbent vulnerable lawsuit. potential employer exis- Unemployment Compensation notify Review Board, agreement. An 567 Pa. 288 tence of the (2001), aspect such a vital of his Supreme our has stated that omission of Court pro- be expectations employability equated have can employers’ interests and employee providing an spective into untruthful to be tаken consideration determin- *11 deliberately withheld that she posed by ployer response question to a direct not in that conduct is Employer. Because employer. and ex- Employer’s interests accord with antipathy to restrictive In addition to its the decision of I would affirm pectations, covenants, finds that majority also the Board. miscon- guilty was not willful merely “forgot” that she duct because she respectfully I dissent. Accordingly, In non-compete agreement. signed had majority imper- making finding, that LEADBETTER COHN Judges found missibly disregards that the Board join. “[Cjlaimant in- deliberately withheld [Ejmployer regarding formation from prior
non-compete agreement with her Employer established
employer.” Once existed, the non-compete agreement
that a to establish
burden shifted to Claimant “forgot.” she testified that
that she While find her tes- forgot,
she the Board did not she re- timony credible and found that Petitioner, DOBASH, Bernard what she had membered and ex- disregarded Employer’s interests v. pectations. AP COMPENSATION WORKERS' Em- majority ignore only Not (PG ENER PEAL BOARD
ployer’s expectations interests find- GY), Respondent. did not commit willful ing finding misconduct and the Boards Pennsylvania. Court of Commonwealth deliberately, did so it now establishes a standard that makes it incumbent on an 5, 2003. Sept. on Briefs Submitted every piece to ferret out of infor- Decided Dec. precludes per- mation that a claimant from forming job that the claimant is hired perform. majority reason- Under
ing, unemploy- a claimant receive would applies job if he or she for a
ment benefits if driver but does not have a license assump-
employer makes the reasonable that a person applying
tion that the knows necessary and hires that
driver’s license is un-
person. a claimant receives Whether not de-
employment compensation should
pend “gotcha” on a standard. case, hired Claimant mere two weeks
good faith and then a if action legal
later was threatened with employ- immediately terminate her
did non-compete agreement on the
ment based previous em- executed with