IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Minuteman Spill Response, Inc., :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 42 C.D. 2015

Respondent : Submitted: July 17, 2015

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McGINLEY FILED: August 11, 2015

Minuteman Spill Response, Inc. (Employer), challenges the order of 

the Unemployment Compensation Board of Review (Board) that reversed the 

Referee’s determination that Curtis Tripp (Claimant)1 was ineligible for 

unemployment compensation benefits under Section 402(e) of the Unemployment 

Compensation Law (Law).2

The facts, as found by the Board are as follows:3

1. The Claimant was last employed by [Employer], a 

service provider for the natural gas well industries, for a 

period of time from May 31, 2013 through July 25, 2014, 

at $16.00 per hour.

 

1 Apparently, Claimant appeared pro se before the UC Referee and Board.

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

3

The Board uses “claimant” and “employer” rather than “Claimant” and “Employer” throughout 

its opinion. For the sake of presentation, we will use Claimant and Employer when quoting from 

the Board’s opinion without noting each instance of its use.
2

2. The Employer’s policy provides that employees are to 

keep the Employer’s information confidential and to act 

in a professional manner.

3. The Claimant was aware of this policy.

4. The Claimant had initially been employed as a driver 

and because of some medical issues; [sic] the Claimant

for the final month of his employment was working as a 

dispatcher on light duty.

5. Another dispatcher overheard the Claimant making 

remarks that were allegedly disparaging of the Employer.

6. The Claimant allegedly told drivers that he used to

work with that the Employer was not going to be around 

[and] that the Employer was going broke.

7. The client’s employees then reported those assertions 

to the Employer.

8. The Employer’s human resources director then 

conducted an investigation and part of that investigation 

was an interview with the Claimant.

9. The Claimant denied that he had made disparaging 

remarks to any other employees of the company or to 

clients of the Employer.

10. The Claimant did admit that he had some discussions 

with a fellow driver trying to convince him to stay on 

with the Employer.

11. Those discussions covered questions as to whether or 

not the Employer would be financially solvent or in fact 

would stay in business.

12. The Claimant was aware that there was much made 

publicly about the Employer and its continued existence.

13. The Claimant was considering bringing a lawsuit 

against one of the Employer’s clients, but did not discuss 

this in the presence of the Employer’s witness.
3

14. The Claimant was discharged for allegedly making 

disparaging remarks to [sic] the Employer.

Board’s Decision, December 17, 2014, (Board Decision), Findings of Fact (F.F.) 

Nos. 1-14 at 1-2.

The Board reasoned:

The Board resolves the conflicts in the testimony, in 

relevant part, in favor of the Claimant and finds his 

testimony to be credible.

....

Since the Claimant was discharged, the Employer has the 

burden of establishing that the discharge was for willful 

misconduct in connection with his work...The Employer

has not met this burden.

The Claimant disputes the allegations by the Employer

that he spoke to many employees in a disparaging way 

about the employer or a pending lawsuit that he was 

considering against one of the primary clients of the 

Employer...[T]he Claimant indicated at no time did he 

discuss that in the presence of the Employer witness. 

The Claimant then indicated that he only had one 

conversation with another driver attempting to persuade 

the driver from leaving that employment.

Board’s Decision at 2-3.

Employer contends4that the Board erred when it found Claimant was

not ineligible for benefits under Section 402(e) of the Law and that the Board 

 

4

In unemployment compensation cases, this Court’s review is to determine whether the order of 

the Board is supported by substantial evidence, whether the adjudication was in accordance with 

the law, and whether constitutional rights were violated. 2 Pa. C.S. § 704; Devine v. 

Unemployment Compensation Review Board, 101 A.3d 1235, 1237 (Pa. Cmwlth. 2014).
4

failed to provide substantial evidence to support its decision to award benefits to 

the Claimant.

I. Whether Claimant Was Ineligible For Benefits Under Section 402(e) of the 

Law?

Section 402(e) of the Law, 43 P.S. § 802(e), provides 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.” “Willful misconduct” has been 

defined as the wanton and willful disregard of an employer’s interests, deliberate 

violation of rules, disregard of the standards of behavior which an employer can 

rightfully expect form an employee, or negligence showing an intentional disregard 

of the employee’s duties and obligations. Johns v. Unemployment Compensation 

Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). The employer bears 

the initial burden of establishing a claimant engaged in willful misconduct. Id. 

Where a violation of the employer’s work rule is alleged as the basis for 

termination, the employer must show that the rule existed, the rule was reasonable, 

and claimant was aware of the rule and violated it. Oyetayo v. Unemployment 

Compensation Board of Review, 110 A.3d 1117, 1121 (Pa. Cmwlth. 2015). If the 

employer makes that showing, then the burden shifts to the claimant to show good 

cause. Id. Whether a claimant’s actions constitute willful misconduct is a question 

of law which is fully reviewable by this Court on appeal. Johns, 87 A.3d at 1009.

Claimant testified that he was questioned by his supervisor, Lisa 

Stanchick, about discussing company business over the phone in possible violation 

of Employer’s rules. Claimant testified:
5

I told her Chris Bowers is the one I was speaking with on 

the phone...When I worked with Chris he was a very 

good driver... And he had some concerns about the 

company’s future... So I simply told him Chris from 

what I understand we’re going to be all right...We got 

people [who have] been here a long time, should be okay 

no matter what happens with [the owner of Employer 

company’s] charges...I said so I would wait, just hang in 

there... 

Notes of Testimony, October 2, 2014, (N.T.) at 33.

Melanie Holub, who worked with Claimant, testified on behalf of 

Employer regarding Claimant’s activities:

[H]e had explained to me how he was going to sue EQT 

which is one of our largest customers. It’s known to 

everybody in the company if we’d lose EQT we’d be in 

real trouble.

....

When we’re supposed to be calling them for their 

schedule and tell them what trucks to take to what rigs he 

would indulge in conversation as to trying to build his 

case, would they support him if he went up against 

EQT...

....

[It] was no secret he didn’t want to be there.

....

He was telling the driver that he used to work with that 

they were not going to be around, [that Employer] was 

going under.

N.T. at 24-26.

The Board noted the existence of Employer’s rule requiring 

employees to keep the Employer’s information confidential and to act in a 

professional manner. Board Opinion, F.F. No. 2, at 1. The Claimant in this 
6

controversy was employed as a dispatcher and allegedly discussed Employer’s 

information over the phone. The dispute between Claimant and Employer was the 

nature and extent of those discussions. 

Essentially, this controversy revolves around credibility. The Board is 

empowered to make credibility determinations and may accept or reject the 

testimony of any witness in whole or in part. Oyetayo, 110 A.3d at 1121. The 

Board found the Claimant to be credible and believed his version of the events and 

his explanation that he “only had one conversation with another driver attempting 

to persuade the driver from leaving that employment.” Board Opinion at 3. The 

Employer in this controversy established that there was the existence of the 

requirement not to reveal Employer’s confidential information and to act in a 

professional manner, but was unable to establish that the Claimant violated this 

requirement. The Board concluded that Claimant was not ineligible for benefits 

under Section 402(e) of the Law, 43 P.S. § 802(e). 

II. Whether the Board Erred When It Reversed the UC Referee?

Employer contends that the Board failed to explain its reasons for 

rejecting the findings and the decision of the UC Referee, without addressing the 

testimony of the Employer’s fact witness or explaining why it made contrary 

credibility determinations.

This Court recently stated the following concerning capricious 

disregard of evidence in unemployment compensation cases:

A capricious disregard of evidence occurs where the fact 

finder willfully and deliberately disregards competent 
7

and relevant evidence that one of ordinary intelligence 

could not have possibly have avoided in reaching a 

result.

....

The standard announced in Wintermyer[5]applies 

whether one or both parties present evidence, and thus, 

overruled this Court’s earlier-announced paradigm that 

appellate review for capricious disregard of evidence was 

limited to the circumstance where the burdened party was 

the only party to present evidence and did not prevail.

Disturbing an agency’s adjudication for a capricious 

disregard of evidence is appropriate only where the 

fact-finder has refused to resolve conflicts in the 

evidence, has not made essential credibility 

determinations or has completely ignored overwhelming 

evidence without comment.

....

An appellate court conducting a review for capricious 

disregard of material, competent evidence may not 

reweigh the evidence or make credibility determinations.

Wise v. Unemployment Compensation Review Board, 111 A.3d 1256, 1262-1263 

(Pa. Cmwlth. 2015). (Citations omitted and emphasis added.)

The Board in this case made essential credibility determinations when 

it found Claimant to be credible, resolved conflicts in the evidence, and it noted the 

evidence presented. This Court finds that the Board did not capriciously disregard

the evidence.

 

5

Leon E. Wintermyer v. Worker’s Compensation Appeal Board (Marlowe), 812 A.2d 478 (Pa. 

2002). The Board asserts in its brief that the “capricious disregard” standard does not apply in 

this controversy because Wintermyer was a plurality opinion. This Court disagrees with that 

assessment of the law.
8

Accordingly, the order of the Board is affirmed.

____________________________

BERNARD L. McGINLEY, Judge

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Minuteman Spill Response, Inc., :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 42 C.D. 2015

Respondent :

O R D E R

AND NOW, this 11th day of August, 2015, the order of the 

Unemployment Compensation Board of Review in the above-captioned matter is 

affirmed. 

____________________________

BERNARD L. McGINLEY, Judge