IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ebony U. L. Kornstedt, :

Petitioner :

:

v. : No. 493 C.D. 2019

: Submitted: November 27, 2019

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: February 18, 2020

Ebony U. L. Kornstedt (Claimant), pro se, petitions for review of an 

adjudication of the Unemployment Compensation Board of Review (Board) denying 

her claim for benefits under Section 402(e) of the Unemployment Compensation 

Law (Law), 43 P.S. §802(e).1 In doing so, the Board found that Claimant’s refusal 

to follow her employer’s directive constituted willful misconduct for which she 

lacked good cause. For the following reasons, we affirm. 

Claimant worked full-time for Statesman Health and Rehabilitation 

Center (Employer) as a certified nursing assistant beginning on September 17, 2017. 

Her last day was October 17, 2018. Claimant filed a claim for unemployment 

compensation benefits, which the Unemployment Compensation (UC) Service

 

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

which states, in relevant part, that “[a]n employe shall be ineligible for compensation for any week 

... [i]n which his unemployment is due to his discharge or temporary suspension from work for 

willful misconduct....”
2

Center granted. Employer appealed, and the Referee held a hearing on December 

27, 2018. 

At the outset of the hearing, the Referee explained that she would 

determine whether Claimant’s conduct on her last day of work constituted 

disqualifying willful misconduct under Section 402(e) of the Law. However, when 

Employer’s Director of Nursing, Jamy Vonberg, testified that Claimant voluntarily 

quit, the Referee received both parties’ consent to consider Claimant’s separation 

under both Section 402(e) and Section 402(b) of the Law.

2

 

Vonberg testified that when Employer is short-staffed, nursing 

assistants may be temporarily reassigned to work in units or wings different than 

their normally assigned locations in order to ensure continuity of care. A week 

before the separating incident, Vonberg explained this practice to Claimant. 

On October 17, 2018, Employer assigned Claimant to work in a 

different wing. When Claimant did not report to her reassigned area, Vonberg 

confronted her. Claimant stated that when Vonberg explained the reassignment 

policy to Claimant the previous week, it was Claimant’s understanding that she 

would never be assigned to work in a different wing. Vonberg explained that while 

Employer would try to avoid modifying Claimant’s assignment, it would do so if the 

need arose. Claimant again refused to work in the different unit. 

Vonberg testified that she attempted to find another nursing assistant to 

cover for Claimant but was unsuccessful. She then told Claimant that she had to 

report to the other wing and would return to her regular unit the next day. Notes of 

Testimony (N.T.), 12/27/2018, at 6. Claimant replied, “[y]ou guys run this place 

 

2 Section 402(b) of the Law, 43 P.S. §802(b), states, in relevant part, that a claimant shall be 

ineligible for compensation for any week in which the claimant’s unemployment is due to “voluntarily 

leaving work without cause of a necessitous and compelling nature[.]” 
3

like a bunch of idiots, I’ll just quit and you can pay me unemployment[.]” Id. at 6. 

When Claimant continued to be loud and disruptive, Vonberg told Claimant to clock 

out, thereby suspending her employment. Claimant began gathering her belongings, 

but continued being disruptive at the nurses’ station. 

Claimant testified on her own behalf. Claimant explained her 

comments to Vonberg as follows: 

I said the words that you guys run this place like you’re idiots, 

and she said are you calling me an idiot, and then she said well, 

I’m your supervisor. That’s grounds for suspension, and I said 

then you can suspend me, and she said well, then you can be 

suspended, and I said you know what, forget the suspension. I 

said you can fire me and I’ll collect unemployment[.] 

Id. at 10. She testified that she quietly gathered her belongings while Vonberg tried 

to “egg [her] on[.]” Id. The next day, she reported to work because Vonberg did 

not tell her when the suspension would end and Employer did not otherwise contact 

her about it. When she arrived, she asked for paperwork documenting either her 

termination or suspension and waited for a human resources employee to take her 

statement. 

Claimant testified that her union representative arranged a meeting 

among Claimant, Vonberg, a second managerial staff member and a human 

resources employee. According to Claimant, “[t]hey told me that basically, the 

grievance meeting was made for me to beg for my job back.” Id. at 11. Claimant 

responded that she “did not want to work for liars.” Id. Claimant testified that this 

statement did not mean she did not want her job back or that she had voluntarily quit. 

The Referee reversed the UC Service Center’s decision, holding that

Claimant was ineligible for benefits under Section 402(b) of the Law. The Referee 

concluded that Claimant presented no competent evidence that she voluntarily left 
4

her employment due to cause of a necessitous and compelling nature. Claimant 

appealed to the Board and also requested a remand hearing for the purpose of 

offering the testimony of her union representative.

On February 21, 2019, the Board issued an adjudication with its own 

findings of fact. The Board found that Claimant’s separation from employment was 

involuntary because Vonberg directed Claimant to clock out and leave. Because 

Claimant was discharged, the Board applied Section 402(e) to determine Claimant’s 

eligibility.3 The Board determined that Employer’s request for Claimant to report to 

a different wing was reasonable and that Claimant’s refusal was unreasonable given 

her prior conversation with Vonberg about the policy. The Board discredited 

Claimant’s testimony that she believed Employer would never ask her to work in a 

different wing. Ultimately, the Board found that Claimant did not present good 

cause for her failure to comply with Employer’s reasonable directive. It therefore 

affirmed the Referee’s decision with the modified findings of fact and found 

Claimant ineligible under Section 402(e). 

The Board denied Claimant’s request for a remand hearing, explaining 

that Claimant had ample opportunity to present her defense and the additional 

testimony she described in her request. Claimant requested reconsideration, which 

the Board denied. Claimant now petitions for this Court’s review. 

 

3 When all parties are on notice that more than one section of the Law is at issue at a referee’s 

hearing, the Board may change the basis for separation from the one originally ruled upon in the 

initial determination. Mellott v. Unemployment Compensation Board of Review, 523 A.2d 412,

414 (Pa. Cmwlth. 1987).
5

On appeal,4 Claimant argues that the Board erred in holding that she is

ineligible for benefits under Section 402(e) of the Law. We begin with a review of 

Section 402(e) of the Law, which provides: 

An employe shall be ineligible for compensation for any week--

* * *

(e) In which his unemployment is due to his discharge or 

temporary suspension from work for willful misconduct 

connected with his work, irrespective of whether or not such 

work is “employment” as defined in this act[.] 

43 P.S. §802(e). This Court has explained that

[t]here are four categories of activity that can constitute willful 

misconduct: (1) the wanton or willful disregard of the 

employer’s interests; (2) the deliberate violation of the 

employer’s rules; (3) the disregard of the standards of behavior 

which an employer can rightfully expect from an employee; and 

(4) negligence demonstrating an intentional disregard of the 

employer’s interests or the employee’s duties and obligations to 

the employer.

Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 439 (Pa. 

Cmwlth. 2000). Whether the conduct for which an employee has been discharged 

constitutes willful misconduct is a question of law, and the employer bears the 

burden of proof. Id. at 438. Where the employer meets that burden, it then becomes 

the claimant’s burden to prove that he had good cause, i.e., his actions were justified 

and reasonable under the circumstances. Id. at 438-39.

 

4 Our review determines “whether constitutional rights were violated, [whether] an error of law 

was committed or whether necessary findings of fact are supported by substantial competent 

evidence.” Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 

n.2 (Pa. Cmwlth. 1995).
6

Where an employee is discharged for refusing to comply with an 

employer’s directive, “both the reasonableness of the demand and the 

reasonableness of the employee’s refusal must be examined.” Dougherty v. 

Unemployment Compensation Board of Review, 686 A.2d 53, 54 (Pa. Cmwlth. 

1996). An employer has the right to make reasonable changes in an employee’s 

duties. Id. This Court typically requires “extraordinary circumstances” to justify a 

claimant’s refusal to follow a reasonable employer directive. Id. An example of an 

extraordinary circumstance is when following the employer’s directive will directly 

threaten the employee’s health or safety. McLean v. Unemployment Compensation 

Board of Review, 383 A.2d 533, 537 (Pa. 1978). As we have explained: 

Normally, when any person is employed, he is employed to do a 

particular task at an assigned time, and at an assigned place. It 

does not follow that the employer agrees never to modify or 

change the task, the time, or the place. If the employer should 

decide to modify or change any of these and the change is 

reasonable, the employee must abide by the employer’s decision 

at the risk of being ineligible for unemployment compensation if 

he refuses.

Tucker v. Unemployment Compensation Board of Review, 319 A.2d 195, 196 (Pa. 

Cmwlth. 1974). 

Here, the Board concluded that Employer’s directive that Claimant 

work in a different wing was reasonable, which is supported by the record. 

Employer established that Claimant would have been performing the same duties 

only in a different location of the center. Vonberg’s testimony further established 

that the reassignment was not permanent and only occurred because Employer was 

short-staffed. Claimant would be returned to her regular unit the next day. Vonberg 
7

also testified that employees took turns taking a reassignment so it was not a frequent 

occurrence for any one employee.

Once Employer established that its directive to Claimant was 

reasonable, the burden shifted to Claimant to prove good cause for her refusal. She 

failed to do so. Claimant offered no evidence of extraordinary circumstances, e.g., 

a threat to her health or safety by working in a different wing. The Board discredited 

Claimant’s testimony that she believed she would never be assigned to a different 

wing. Claimant’s preference not to work in a different area did not justify her refusal 

to comply with a reasonable supervisory directive. Therefore, the Board did not err 

in holding that Claimant committed willful misconduct without good cause. 

Next, we address Claimant’s argument that the Board erred in denying 

her request for a remand hearing. She asserts that her union representative would

support her version of events and directly contradict Employer’s testimony. 

Section 504 of the Law provides that the Board shall have the power to 

direct the taking of additional evidence. 43 P.S. §824. If the Board determines that 

a further hearing is necessary, the case is remanded to the referee as a hearing officer 

to receive additional information as may be pertinent and material to a proper 

conclusion of the case. 34 Pa. Code §101.104(d). A rehearing is “generally granted 

to allow a party the opportunity to present evidence not offered at the original 

hearing because it was not then available.” Fisher v. Unemployment Compensation 

Board of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997). The denial of an 

application for a remand will be reversed only for a clear abuse of discretion. Id.

In its decision, the Board explained that Claimant’s request for a 

remand hearing for additional testimony was denied because she had “ample 

opportunity to present her defense at the initial hearing and [had] not provided proper 
8

cause for a new hearing.” Board Decision, 2/21/2019, at 2. In her request, Claimant 

did not aver that her witnesses were not available for the original hearing and she 

offered no valid reason for waiting until after the Referee’s decision before trying to 

introduce these witnesses. Instead, Claimant stated, “[t]he employer made false 

statements throughout the hearing. My union representative (Saylor Winslow) is 

more than willing to speak to whom it may concern on my behalf to back my claims 

and act as [a] witness to the actual events that took place.” Certified Record Item 

No. 10, at 4. However, because the Board’s adjudication was based on Claimant’s 

refusal to comply with Employer’s directive, this testimony is irrelevant. We 

therefore hold that the Board did not abuse its discretion in denying a rehearing to 

Claimant. 

Accordingly, the Board’s order is affirmed. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ebony U. L. Kornstedt, :

Petitioner :

:

v. : No. 493 C.D. 2019

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 18th day of February, 2020, the adjudication of the 

Unemployment Compensation Board of Review dated February 21, 2019, in the 

above-captioned matter is AFFIRMED.

 

 

MARY HANNAH LEAVITT, President Judge