IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chan & Associates, :

Petitioner :

:

v. : No. 8 C.D. 2020

: SUBMITTED: September 17, 2020

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE J. ANDREW CROMPTON, Judge 

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: October 19, 2020

Employer, Chan & Associates, petitions for review of an order of the 

Unemployment Compensation Board of Review that reversed the order of a referee. 

The referee had determined that Claimant, Lori L. High, was ineligible for 

unemployment compensation benefits because her actions constituted willful 

misconduct under Section 402(e) of the Unemployment Compensation Law (Law).1 

We affirm the order of the Board granting benefits.2

The facts as found by the Board are as follows. Claimant worked as a 

paralegal for Employer, a law firm, from July 2013 to June 2019 at a final hourly 

rate of $26.92. (Board’s Finding of Fact “F.F.” No. 1.) Her job duties included 

scheduling, filing, answering the phone, billing, bookkeeping, and writing checks. 

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

2 The Board indicated that it would not be filing a brief, stating that Claimant’s brief 

adequately covered the issues that it would have briefed.
2

(F.F. No. 3.) Over the years, Employer’s caseload grew thereby increasing 

Claimant’s workload. (F.F. No. 4.)

Employer’s owner, Wendy Chan, tried to enable Claimant to keep up 

with the demands of her job. Chan suggested that Claimant stop answering the 

phones and close her office door to avoid distractions. (Id.) However, Claimant 

answered the phone when no one else did so or she was the only employee in the 

office. Additionally, when Claimant tried working with her door shut, “other 

employees would frequently knock to solicit her assistance.” (F.F. No. 5.) Chan 

also directed Claimant “to relinquish some of her duties like billing and checkwriting to a new legal assistant and give all divorce cases to the other paralegal.” 

(F.F. No. 6.) However, Claimant “had to train the new legal assistant which limited 

the duties that she could relinquish.” (F.F. No. 7.)

Subsequently, problems ensued once Employer approved Claimant’s 

request to take vacation from July 1 through 5, 2019, with a return date of July 8. 

(F.F. No. 8.) “There were three court filing deadlines set to occur on or around July 

1, 2019 and July 2, 2019.” (F.F. No. 9.) As the Board found:

10. One of the deadlines involved the filing of an expert 

report by July 1, 2019.

11. Per [Chan’s] request, [C]laimant contacted the client 

on June 28, 2019. The client responded that “treatment 

notes” would be emailed to [C]laimant the next day, at 

which time [she] would forward them to the other 

paralegal.

12. [C]laimant told the other paralegal to be on the lookout for any client reports, and that she would forward the 

document to her when she received it. However, the client 

never emailed the report.
3

13. [E]mployer blamed [C]laimant for not informing the 

other paralegal about a discovery deadline in the divorce 

case, and for not placing a deadline on the calendar to 

exchange exhibits and meet with opposing counsel in a 

separate custody case.

(F.F. Nos. 10-13.)

After Claimant returned from vacation, Chan met with her to discuss 

the situation. As a result, Employer discharged Claimant from employment “for the 

missed filing deadlines that had occurred during her vacation.”3 (F.F. No. 15.) 

Claimant applied for unemployment compensation benefits and the Erie 

Unemployment Compensation Service Center found her to be eligible for benefits. 

Following a hearing at which Claimant, with counsel, and Employer’s witnesses, 

Chan and a paralegal, appeared and testified, the referee reversed the eligibility 

determination.

On appeal, the Board issued its own findings of fact and decision in 

favor of Claimant. In support of its determination, the Board cited the totality of the 

evidence. (Board’s Decision at 4.) Employer’s petition for review to this Court 

followed. Employer presents one issue for review: whether the Board erred in 

determining that Claimant’s conduct did not rise to the level of willful misconduct.4

Section 402(e) provides, in pertinent part, that an employee 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 connected 

with his work . . . .” 43 P.S. § 802(e). Although not statutorily defined, “willful 

3 Employer did not have a handbook or maintain any written disciplinary policy. (F.F. No. 

2.)

4 Whether a claimant’s conduct constitutes willful misconduct is a question of law over which 

this Court exercises plenary review. Frazier v. Unemployment Comp. Bd. of Review, 833 A.2d 

1181 (Pa. Cmwlth. 2003).
4

misconduct” has been described as a wanton and willful disregard of an employer’s 

interest, deliberate violation of rules, disregard of standards of behavior which an 

employer can rightfully expect from its employee, or negligence which manifests 

culpability, wrongful intent, evil design, or intentional and substantial disregard for 

the employer’s interest or the employee’s duties and obligations. Glatfelter Barber 

Shop v. Unemployment Comp. Bd. of Review, 957 A.2d 786, 792 (Pa. Cmwlth. 

2008). The employer bears the initial burden of proving that a claimant engaged in 

willful misconduct. Brown v. Unemployment Comp. Bd. of Review, 49 A.3d 933, 

937 (Pa. Cmwlth. 2012). Once the employer establishes a prima facie case of willful 

misconduct, the burden then shifts to the claimant to demonstrate good cause. Id.

The Board is the ultimate finder of fact in unemployment compensation 

cases with the power to determine credibility and evidentiary weight. Peak v. 

Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985). This Court 

may not reweigh the evidence or overturn credibility determinations on appeal. 

Fitzpatrick v. Unemployment Comp. Bd. of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 

1992). We must view the evidence in the light most favorable to the party who 

prevailed before the Board, giving that party the benefit of all inferences that can 

logically and reasonably be drawn from the testimony. Chapman v. Unemployment 

Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). “The fact that 

Employer may have produced witnesses who gave a different version of the events, 

or that Employer might view the testimony differently than the Board, is not grounds 

for reversal . . . .” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 

1106, 1108-09 (Pa. Cmwlth. 1994). Additionally, the Board’s findings of fact are 

conclusive on appeal when the record, in its entirety, contains substantial evidence 
5

supporting those findings. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 

432, 438 (Pa. Cmwlth. 2010).

In the present case, Employer argues that Claimant’s admitted failure 

to abide by its suggestions and directives over the course of several months resulted 

in her missing important filing deadlines and constituted a wanton and willful 

disregard of its interests, a deliberate violation of its rules, and negligence indicating 

an intentional disregard of its interests or her duties and obligations. Additionally, 

it maintains that there is no support in the record for Finding of Fact No. 5—that 

Claimant tried working with her door closed but found it to be difficult due to 

coworkers frequently knocking and requesting her assistance, and Finding of Fact 

No. 7—that training a new legal assistant limited the duties that she could relinquish. 

In support, Employer notes (1) Claimant’s admission that she only closed her door 

a few times and inability to explain why she did not do so all of the time; and (2) the 

fact that she spent three weeks training a coworker contrary to its directive to hand 

over the billing and check writing.

Employer’s arguments constitute an improper attack on the Board’s 

determinations as to credibility and evidentiary weight. The Board accepted 

Claimant’s version of the events surrounding her separation, concluding that she 

made reasonable efforts to improve her work performance and that Employer’s 

directives were not always reasonable under the circumstances. (Board’s Decision 

at 4.)

As Employer asserts with respect to its suggestion that Claimant close 

her door, Claimant testified that she stopped doing so after a few times. (Sept. 19, 

2019 Hearing, Notes of Testimony “N.T.” at 27; Reproduced Record “R.R.” at 48.) 

However, in an attempt to illustrate Claimant’s failure to follow directions, Chan 
6

confirmed Claimant’s explanation that people kept stopping in to bother her and that 

she would have to stop what she was doing and explain something to them. (N.T. at 

13; R.R. at 34.) Similarly, the Board concluded that Employer’s suggestion that 

Claimant increase her productivity by not answering the phone was unreasonable, 

given the fact that she had no alternative when calls went unanswered or she was 

alone in the office. (Board’s Decision at 4.)

Additionally, the Board weighed the fact that Claimant was in the 

process of training a new coworker. (Id.) Notwithstanding Claimant’s testimony 

that Employer instructed her simply to transfer the check writing duties to a 

coworker, Claimant explained “there were processes and it wasn’t just something I 

could hand to [a coworker].” (N.T. at 25; R.R. at 46.) As for billing, Claimant 

described what the task entailed and stated that it took her three weeks to transfer 

those duties.5 Consequently, even though the failure to follow reasonable directives 

might constitute willful misconduct,6 Employer failed to establish that Claimant’s 

reasonable efforts to comply and/or subsequent compliance with its directives 

constituted willful misconduct under the circumstances of this case.

As for the missed filing deadlines, which Employer testified 

precipitated Claimant’s involuntary discharge and arguably resulted from a failure 

to follow the aforementioned directives, the Board determined that Employer failed 

5 The relevant testimony is as follows:

I trained [the coworker] on how to do the billing. I helped her with 

any problems, answered any questions, explained the processes of 

making sure everyone else had their billing in, how to generate 

drafts, explained to her that [Employer’s owner] needed to review 

them before they went out and showed her how to send them.

(N.T. at 26; R.R. at 47.)

6 LeGare v. Unemployment Comp. Bd. of Review, 444 A.2d 1151, 1153 (Pa. 1982).
7

to establish that any mistakes were of an intentional or deliberate nature rising to the 

level of willful misconduct. In support, the Board accepted as credible Claimant’s 

testimony that she was working sixty to seventy hours per week and to the best of 

her abilities. (Board’s Decision at 4.) Additionally, it noted that Employer 

instructed her not to work so late. (Id.) Notably, a finding of fact that a claimant 

worked to the best of his or her abilities negates a conclusion of willful misconduct. 

Norman Ashton Klinger & Assocs., P.C. v. Unemployment Comp. Bd. of Review, 

561 A.2d 841, 843 (Pa. Cmwlth. 1989).

Additionally, the Board rejected the referee’s application of a 

“heightened level” of care to paralegals that our Supreme Court rejected with respect 

to healthcare workers in Navickas v. Unemployment Compensation Board of Review, 

787 A.2d 284, 307 (Pa. 2001). Specifically, the Court rejected an ad hoc “higher 

standard of care” for healthcare workers, which ostensibly would have permitted any 

act of negligence or inadvertence on their part, standing alone, to be deemed willful 

misconduct, emphasizing that mere negligence does not constitute willful 

misconduct and that there is only one standard. Id. Accordingly, mindful in the 

present case that Claimant did not testify that she knew the difference between an 

expert report and treatment notes, the Board reasoned:

It was noted in the Referee’s decision that [C]laimant’s 

conduct in relation to the missed custody report filing was 

particularly egregious because [she] “should have known 

the difference” between “treatment notes” and an “expert 

report” based on her paralegal training. However, given 

that the standard of behavior against which to measure 

[her] conduct is not that of a paralegal, but standards 

common to all, the fact that [she] had paralegal training is 

irrelevant for purposes of determining whether her mistake 

rose to the level of willful misconduct . . . .
8

(Board’s Decision at 3.)

Moreover, the Board found that Claimant should not be deemed solely 

culpable for the missed deadline, reasoning:

[C]laimant also stated that the other paralegal was aware 

of the report and on the “look-out” for it, as [C]laimant 

would be forwarding it to her once [Claimant] received it 

from the client. Thus, when the report was not received 

by Monday, July 1, 2019, the other paralegal could have 

reached out to [C]laimant or the client to inquire about the 

report.

(Id.)

Further, the Board addressed the effect of Employer’s directive to 

Claimant to relinquish all of her duties relating to the firm’s divorce cases on its 

inclusion of a missed filing deadline in a divorce proceeding as a reason for 

termination. The Board concluded: “To state that [C]laimant was instructed to 

relinquish her divorce case responsibilities, but then use her mistake in a divorce 

proceeding as a reason to fire her, is inconsistent.” (Id.) As Employer asserts, 

Claimant’s scheduling duties might have included placing this deadline on the 

calendar. However, as we reiterate below, the Board determined that Claimant’s 

mistakes were not intentional or deliberate but instead, the result of attempting to 

keep up with her increased workload.

Finally, mindful of Employer’s acknowledgement that Claimant 

initially was able to keep up with the demands of her job, the Board reasoned:

Though a claimant who has already demonstrated the 

skills and abilities to perform the job may be disqualified, 

here, there is no indication that [C]laimant’s work 

performance deteriorated because of carelessness. 

[E]mployer testified that over the years, the firm’s 
9

caseload and, therefore, [C]laimant’s work had “tripled, 

quadrupled” in size. As such, any mistakes or 

“carelessness” are attributable to [C]laimant’s struggle to 

manage a significantly larger workload.

(Id.)

Accordingly, we affirm.7

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

7

In light of Employer’s failure to meet its prima facie burden of proving willful misconduct, 

the burden never shifted to Claimant to establish that her conduct was justifiable or reasonable 

under the circumstances pursuant to Frumento v. Unemployment Compensation Board of Review, 

351 A.2d 631, 634 (Pa. 1976).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chan & Associates, :

Petitioner :

:

v. : No. 8 C.D. 2020

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 19th day of October, 2020, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge