IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephanie E. Patnesky, :

Petitioner :

:

v. : No. 591 C.D. 2017

: Submitted: January 26, 2018

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT1 FILED: October 29, 2018

Stephanie E. Patnesky (Claimant) petitions for review of an 

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

that affirmed a Referee’s decision that Claimant was ineligible for unemployment 

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

Law (Law).2 For the following reasons, we reverse the Board. 

Claimant began working full-time for the Department of 

Transportation, Bureau of Driver Licensing (Employer) as a Driver’s License 

Examiner Assistant in 2010. She was suspended on October 7, 2016, and discharged 

 

1 This case was assigned to the authoring judge on June 19, 2018. 

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

Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any 

week in which her unemployment is due to her discharge or temporary suspension from work for 

willful misconduct connected with her work.
2

on November 2, 2016, for violating Employer’s confidentiality policy.

3

 Claimant 

applied for unemployment compensation benefits and denied violating Employer’s 

policy. Based on information provided by Employer, the Duquesne UC Service 

Center issued a Notice of Determination finding that Claimant disclosed 

“confidential Department information to unauthorized persons” and, thus, was 

ineligible for benefits pursuant to Section 402(e) of the Law. Certified Record (C.R.)

Item No. 7, at 1. Claimant appealed, and a hearing was conducted by a Referee.

At the hearing, Employer presented the testimony of Ronald Beatty, its 

western region manager. He testified that Employer’s confidentiality policy permits 

employees to access Department information only to fulfill their job responsibilities. 

An employee may not access or use confidential Department information for 

personal reasons or to assist family and friends. She may, however, ask an employee 

in another unit to assist family and friends. The confidentiality policy also prohibits 

an employee from accessing or providing Department information to a co-worker so 

that the co-worker, in turn, can assist hisfamily or friends. Beatty clarified, however, 

that the confidentiality policy allows an employee to do a transaction for a coworker’s family or friends, so long as the requested transaction is one of the 

employee’s assigned job responsibilities. 

Beatty testified that Claimant was discharged for using Department 

information to produce a replacement identification card for Christopher Beardshall, 

 

3

In the termination letter dated November 2, 2016, Employer advised Claimant that she violated 

Employer’s “Record Information Confidentiality Policy” and “Driver and Vehicles Services 

Privacy Procedure Document.” Certified Record (C.R.) Item No. 4, Service Center Exhibit 8. 

Both documents were admitted into the record without objection from Claimant. After the hearing, 

the Referee found that Claimant violated only the “Record Information Confidentiality Policy.” 

Referee Decision at 1-2; Findings of Fact Nos. 2-6. The Board adopted the Referee’s findings of 

fact. 
3

who is the child of her co-worker, Thomas Beardshall, “when the child, the actual 

customer was not even present at the license center.” Notes of Testimony, 

12/27/2016, at 11 (N.T. __). When Beatty questioned Claimant at a pre-disciplinary 

conference, Claimant acknowledged that she signed the confidentiality policy and

stated that “she should have known better.” N.T. 14. A copy of the confidentiality 

policy was admitted into the record. On cross-examination, Beatty acknowledged 

that preparing identification cards was Claimant’s job responsibility.

Beatty complained that Claimant did not present the guardianship order 

in her defense at the pre-disciplinary conference. However, he also acknowledged 

that he “saw a part of that document” during investigative interviews of Mr. 

Beardshall. N.T. 16.4 Beatty also acknowledged that Beardshall is Christopher’s 

legal guardian and has a power of attorney to act on Christopher’s behalf. 

Nevertheless, Beatty believed that Claimant should have sought a supervisor’s 

approval before processing Christopher’s application for a replacement 

identification card. 

Claimant testified on her own behalf. Her attorney showed her a copy 

of a 2014 order of the Allegheny County Court of Common Pleas, admitted into 

evidence, finding that Christopher Beardshall suffered from pervasive 

developmental disorder. The court adjudged Christopher “an incapacitated person” 

and appointed Beardshall as “Permanent Plenary Joint Co-Guardian” along with 

Christopher’s mother. C.R. Item No. 11, Claimant Exhibit 4 at 4. The co-guardians 

were made responsible for Christopher’s “Person” and his “Estate,” with the 

authority to marshal [sic] all of Christopher Thomas Beardshall’s 

income and assets, pay his bills and manage his financial affairs 

 

4 Employer investigated Beardshall because he had asked Claimant to issue an identification card 

for his son. His discipline, if any, is unknown.
4

as fully as Christopher Thomas Beardshall could do so himself if 

he had not be [sic] adjudged incapacitated.

Id. at 5. Claimant testified that she was aware of this court order, which she referred 

to as a “power of attorney,” through her conversations with Beardshall and because 

she had processed Christopher’s original identification card application when “he 

first got his picture” taken for the card. N.T. 26. For the initial transaction, 

Christopher was accompanied by his mother. 

Regarding the incident for which she was discharged, Claimant testified 

that Beardshall, in person, presented an application for Christopher’s replacement 

identification card. Claimant believed Beardshall’s power of attorney authorized her 

to process Christopher’s application. Claimant stated that she did not violate or 

intend to violate Employer’s policies. She also testified that she had never been told 

that she needed a supervisor’s approval to process an application presented by a 

person acting under a power of attorney. When asked why she told Beatty “she 

should have known better,” she stated that a union representative advised her to 

“admit to everything” at the pre-disciplinary conference, say “you’re sorry” and “go 

on your way.” N.T. 29. 

The Referee affirmed the UC Service Center’s determination that 

Claimant was ineligible for benefits under Section 402(e) of the Law because she

had engaged in willful misconduct.5 In so holding, the Referee found that 

Employer’s confidentiality policy prohibited an employee from sharing Department

information with a co-worker. Claimant was aware of the policy and violated it by 

accessing Christopher’s record information and issuing a replacement identification

 

5 The Referee found that Claimant received $1,179 in unemployment compensation benefits to 

which she was not entitled, but concluded that this was a non-fault overpayment pursuant to 

Section 804(b) of the Law, 43 P.S. §874(b). This part of the decision was not appealed. 
5

card for him when he was not physically present. Claimant did so without approval 

of her supervisor. On these factual findings, the Referee concluded that Employer 

met its burden of proving that Claimant was discharged for willful misconduct, and 

the burden shifted to Claimant to show good cause for her conduct.

The Referee concluded that Claimant failed to show good cause 

because she did not raise the guardianship order during Employer’s pre-disciplinary 

conference. The Referee reasoned that this “mitigates any possible good cause” for 

her violation of the confidentiality policy. Referee Decision at 4. For the same 

reason, the Referee discredited Claimant’s testimony that she was aware of the 

guardianship order when she issued the identification card in Christopher’s absence. 

Id. The Referee further questioned the authenticity of the guardianship order

because neither Beardshall nor Christopher was present at the Referee’s hearing to 

confirm that the order was still in effect when Claimant issued the replacement 

identification card. Claimant appealed to the Board. 

On appeal, the Board adopted the Referee’s findings of fact and 

conclusions of law and affirmed the Referee’s order. However, the Board did not 

adopt the Referee’s analysis. It held that it did “not rest its conclusion of law on the 

authenticity of the [power of attorney] document.”

6

 Board Adjudication at 1. 

Rather, the Board determined that Claimant’s failure to offer the guardianship order 

during Employer’s pre-disciplinary meeting “vitiates her good cause argument.” Id. 

Claimant now petitions for this Court’s review of the Board’s adjudication.7

 

6

Indeed, the court order is a public record of which an administrative agency can take official 

notice, as the Referee had acknowledged.

7 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

On appeal, Claimant argues that the Board erred. Claimant asserts that 

the Board ignored the legal effect of the guardianship order. Further, the 

confidentiality policy did not require that Christopher be present when Beardshall 

requested an identification card on his son’s behalf under authority of a power of 

attorney. Likewise, the policy did not require that Claimant consult her supervisor 

before processing Christopher’s replacement identification card; no such rule 

existed. In short, because Employer failed to prove “the existence of the rule and 

the fact of its violation,” Claimant argues that the Board erred in concluding that 

Claimant engaged in disqualifying willful misconduct under Section 402(e) of the 

Law. Claimant Brief at 12.

At the outset, we address the Board’s waiver argument, which it makes 

in virtually every brief it files with this Court. The Board asserts that because the 

statement of questions in Claimant’s brief raises only the issue of whether Claimant 

committed disqualifying willful misconduct under Section 402(e) of the Law, 

Claimant cannot challenge the Referee’s “findings of fact,” which in this case 

include a statement that Claimant violated Employer’s confidentiality policy

because Christopher “was not present during the transaction.” Referee Decision at 

2, Finding of Fact No. 6. By couching the legal conclusion that Claimant violated 

the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit 

in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts 

that the ultimate legal issue in this case is beyond appellate review. This is sophistry. 

Whether Claimant’s actions constituted disqualifying willful misconduct is a 

question of law fully reviewable by this Court. Oyetayo v. Unemployment 

Compensation Board of Review, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In 

deciding that legal issue, this Court must determine whether Claimant’s actions 
7

violated Employer’s policy as was concluded by the Board. We reject the Board’s 

waiver argument and proceed to the merits of Claimant’s appeal.

In unemployment cases, the initial burden of proving willful 

misconduct lies with the employer. Id. at 1121. Although not defined in the Law, 

willful misconduct has been interpreted to include: 

(i) wanton and willful disregard of the employer’s interests; (ii) 

a deliberate violation of the employer’s rules; (iii) a disregard of 

the standards of behavior that the employer rightfully can expect 

from its employees; and (iv) negligence that manifests 

culpability, wrongful intent or evil design, or an intentional and 

substantial disregard of the employer’s interests or the 

employee’s duties and obligations.

Id. Where an employer seeks to deny unemployment compensation benefits based 

on a work rule violation, the employer must show that the rule existed; that the rule 

was reasonable; and that the claimant was aware of and violated the rule. Id. If the 

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

for her conduct. Id.

The Board is the ultimate finder of fact and is empowered to make 

credibility determinations. Id. “When the Board’s findings of fact are supported by 

substantial evidence, that is such evidence a reasonable mind might accept as 

adequate to support a conclusion, those findings are conclusive on appeal.” Id. at 

1122. However, whether an employee’s actions constitute willful misconduct is a 

question of law fully reviewable by this Court. Id. 

We begin with a review of the policy that Claimant was found to have

violated. Employer’s Record Information Confidentiality Policy states in pertinent 

part as follows:

As an employee, you may access information only when 

necessary to accomplish the responsibilities of your 
8

employment. You may NOT access or use information from 

PENNDOT/DHS for personal reasons or to assist your family or 

friends yourself. You must ask another unit that processes that 

type of transaction to assist your relative or friend. You may 

NOT access and provide record information to a co-worker so 

that the co-worker can assist his/her family. You may help your 

co-workers’ family and friends directly BUT ONLY if the 

transaction is part of your assigned job responsibilities.

C.R. Item No. 4, Service Center Exhibit 10 (emphasis added).8 The Referee found 

that Claimant violated the confidentiality policy because she obtained Christopher’s 

record information at Beardshall’s request and issued an identification card for 

Christopher when he was not physically present. 

The Referee misread the confidentiality policy. It expressly authorizes

an employee to “help [a] co-worker[’s] family and friends directly ... if the 

transaction is part of [the employee’s] assigned job responsibilities.” Id. (emphasis 

added). Here, Claimant “directly” helped her co-worker’s son, Christopher, by 

issuing him a replacement identification card. It is undisputed that it was Claimant’s 

job responsibility to issue this identification card. The confidentiality policy did not 

require Christopher’s physical presence and, in any event, Christopher would have 

been unable to request or consent to the transaction because of his disability.9 

The Board argues that the term “directly” required Christopher to 

accompany his legal guardian before Claimant could issue his identification card. 

Board Brief at 10. We reject this construction of the word “directly.” The policy 

provides, simply, that the employee in question do the transaction as opposed to 

 

8 The Record Information Confidentiality Policy was submitted to the UC Service Center and later 

admitted into the record without objection. See N.T. 5-6.

9 The guardianship order established that Christopher has a Full Scale IQ of 55. His functional 

limitations include, inter alia, an inability to sign documents or to understand what he is signing. 

He requires 24-hour supervised care and assistance with all activities of daily living. C.R. Item 

No. 11, Claimant Exhibit 4 at 2-3.
9

acting “indirectly” by assisting a co-worker to take action. Claimant did not give 

Beardshall confidential information for him to use. Rather, she used the information 

to do her job. Stated otherwise, Claimant acted directly, not indirectly, and it was 

her job responsibility to do so.

The confidentiality policy does not address guardianships or powers of 

attorney. The Referee discredited Claimant’s testimony that when she processed 

Christopher’s application she knew that Christopher was the subject of a 

guardianship order.10 The Board argues that, as a result of the Referee’s credibility 

determination, the legal effect of the guardianship order is “immaterial.” Board 

Brief at 12. We disagree. Whether Claimant knew of the guardianship order when 

she processed Christopher’s application is irrelevant. 

First, at no point did Employer contend that the guardianship did not 

exist or was not in effect at the time Claimant issued Christopher a replacement 

identification card. Beatty, Employer’s western region manager, admitted to seeing 

the order during Employer’s investigation. 

Second, Employer’s willful misconduct charge was based solely on the 

confidentiality policy. Employer never asserted that it had rules governing the 

processing of an application for one under a guardianship or that Claimant violated 

these rules. Beatty did not testify that Claimant should have demanded a copy of the 

guardianship order before she processed Christopher’s application. Rather, Beatty 

testified that Claimant should have sought her supervisor’s approval. He did not 

 

10 The Referee did not make an express credibility determination in the findings of fact but 

discredited Claimant’s testimony in the discussion portion of the decision. Neither the Referee 

nor the Board took into account the fact, uncontradicted by Employer, that Claimant had a prior 

experience with Christopher and his other guardian when she issued the identification now sought 

to be replaced by the requesting guardian. 
10

explain why this approval was needed. It matters not. The confidentiality policy is 

silent on the processing of applications presented by one acting under a guardianship 

order and on the circumstances that require a supervisor’s approval. 

Indeed, the evidence shows that Employer did not interpret its policy as 

the Board has suggested, i.e., to require the physical presence of an individual subject 

to guardianship. Beatty explained during cross-examination: 

[Claimant’s Counsel]: There is nothing in [Employer’s] policies 

that prohibit the making of an identification card for an 

individual who is not present when the individual that has the 

individual’s power of attorney requests the identification card in 

person, correct?

[Beatty]: It can be processed with the supervisor’s approval.

[Claimant’s Counsel]: And there’s nothing in the policy that says 

you have to get the supervisor’s approval first in that case, 

correct?

[Beatty]: The policy’s still applicable in that situation.... I did 

not research that prior to today.

N.T. 21. In short, Beatty acknowledged that the only presence required is that of the 

legal representative, not the person subject to guardianship. Beatty testified that 

Claimant could have processed Christopher’s application “with [her] supervisor’s 

approval.” Id. This testimony reflects, at best, an ambiguity in Employer’s policy. 

It is well established that noncompliance with a work rule in itself does not amount 

to a “deliberate violation.” Oyetayo, 110 A.3d at 1121. See also Chester Community 

Charter School v. Unemployment Compensation Board of Review, 138 A.3d 50, 54 

(Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule 

may not constitute willful misconduct.”). 
11

The Board directs our attention to Walsh v. Unemployment 

Compensation Board of Review, 943 A.2d 363 (Pa. Cmwlth. 2008), where this Court 

held that a claimant engaged in disqualifying willful misconduct under Section 

402(e) of the Law by violating confidentiality policies. In that case, the claimant, a 

driver license center manager, also employed by Employer, printed out confidential 

information about an individual romantically involved with the claimant’s estranged 

wife. Employer fired the claimant, and the Board denied the claimant 

unemployment benefits. This Court affirmed because Employer established the 

existence of the confidentiality policy; that the policy was reasonable; and that the 

claimant violated the policy by printing out confidential information for personal 

reasons. We rejected the claimant’s good cause defense. 

Walsh is distinguishable. Unlike the driver license manager, who 

printed confidential information for personal reasons, Claimant used Christopher’s 

confidential information to do her job. Her issuance of a replacement identification 

card for Christopher was consistent with Employer’s policy, which permits an 

employee to “help [a] co-worker[’s] family and friends directly.” C.R. Item No. 4, 

Service Center Exhibit 10. Because Employer did not meet its initial burden of 

proving willful misconduct, the burden never shifted to Claimant to show good cause 

for her conduct. Oyetayo, 110 A.3d at 1121.11

Neither the Board nor Employer challenges the uncontroverted fact that 

the guardianship order named Christopher’s parents co-guardians and that they had 

 

11 The hearing before the Referee was de novo. What Claimant said or did not say during 

Employer’s investigation of her conduct did not constitute a waiver of Claimant’s ability to raise 

the guardianship order in the unemployment proceeding. The merits of Claimant’s discharge are

irrelevant to Claimant’s application for unemployment benefits. In any case, Beatty testified that 

he learned of the guardianship order in the course of Employer’s disciplinary investigation of both 

Beardshall and Claimant.
12

a power of attorney to carry out their duties. Under the Pennsylvania Probate, 

Estates and Fiduciary Code (Code), guardians have the duty to “assert the rights and 

best interests” of their ward and may “transfer title to personal estate, or perform any 

other act of administration by an attorney or agent under a power of attorney.” 20 

Pa. C.S. §§5521(a), 3319(a). The Code provides that an “act performed by an agent 

pursuant to a power of attorney has the same effect ... as if the principal performed 

the act.” 20 Pa. C.S. §5601.4(g). It has long been the law in Pennsylvania that the 

guardian “is the personal representative of the ward while the ward lives.” In re 

Frew’s Estate, 16 A.2d 26, 27 (Pa. 1940). Likewise, the Code defines a guardian as 

a “fiduciary who has the care and management of the estate or person of a minor or 

an incapacitated person.” 20 Pa. C.S. §102. When Beardshall requested Claimant 

to issue a new identification card, he made the request as Christopher’s legal 

representative. As a matter of law, he made the request as if he were Christopher, 

not Christopher’s father. In this respect, Employer’s confidentiality policy is not 

even implicated because Christopher is not a co-worker of Claimant. 

For the foregoing reasons, we conclude that the Board erred in 

determining that Claimant was ineligible for benefits under Section 402(e) of the 

Law. Accordingly, we reverse the Board’s adjudication and remand the matter for 

further proceedings before the Referee to calculate the unemployment benefits owed 

to Claimant.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephanie E. Patnesky, :

Petitioner :

:

v. : No. 591 C.D. 2017

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 29th day of October, 2018, the order of the 

Unemployment Compensation Board of Review dated April 13, 2017, in the abovecaptioned matter is hereby REVERSED, and the matter is REMANDED for further 

proceedings in accordance with the attached opinion.

Jurisdiction relinquished.

 ______________________________________

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

Stephanie E. Patnesky, :

:

Petitioner :

:

v. : No. 591 C.D. 2017

: Submitted: January 26, 2018

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION 

BY JUDGE WOJCIK FILED: October 29, 2018

Pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. 

§704, we are directed to affirm the Board’s adjudication unless we determine that 

constitutional rights were violated, the adjudication is not in accordance with the 

law, or any necessary finding of fact made by the Unemployment Compensation 

Board of Review (Board) is not supported by substantial evidence. Estate of 

McGovern v. State Employees’ Retirement Board, 517 A.2d 523 (Pa. 1986). 

Because I believe that our scope of review precludes us from engaging in the 

majority’s analysis, I respectfully dissent. 

Stephanie E. Patnesky (Claimant) was discharged from her 

employment with the Department of Transportation, Bureau of Driver Licensing 

(Employer) for accessing confidential information to produce a Pennsylvania 
MHW - 2

identification card for Christopher Beardshall and providing the identification card 

to his father, Thomas Beardshall, her coworker. Following her discharge, the local 

service center determined that Claimant was ineligible for benefits under Section 

402(e) of the Unemployment Compensation Law (Law),

1 and Claimant appealed. 

At a referee’s hearing, Employer offered testimony concerning its 

confidentiality policy and submitted a copy of the confidentiality policy into 

evidence. Employer also submitted the minutes of a pre-disciplinary conference it 

held prior to terminating Claimant’s employment. Claimant did not object to the 

introduction of that transcript. Notes of Testimony (N.T.) at 5-7, 17.

Claimant testified that she provided a replacement state identification 

card to her coworker for his son because she was aware that the coworker had a 

guardianship order that she referred to as a power of attorney (POA). She stated she 

did not believe she was violating Employer’s policy when she did this. Claimant 

acknowledged that she admitted to violating Employer’s policy during the predisciplinary conference, explaining that a union representative advised her that she 

would just get a three-day suspension. 

Following the hearing, the referee affirmed the job center’s 

determination that Claimant was ineligible for benefits under Section 402(e).

The referee’s relevant findings of fact include the following: 

3. [Employer’s confidentiality policy states] that 

employees may not access and provide record information 

to a coworker so that the coworker can assist his/her 

family and that an employee may help a coworker’s family 

and friends directly . . . .

* * *

 

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

§802(e).
MHW - 3

5. The Claimant . . . was, or should have been aware of 

[that] policy. 

6. [Claimant] accessed [Employer’s] records of the son of 

a coworker and produced a replacement Pennsylvania 

state identification card for the coworker’s son who was 

not present during the transaction in violation of 

Employer’s policy. 

* * *

8. The Claimant understood the above to be in violation of 

Employer’s policy.

* * *

12. During [a pre-disciplinary conference] meeting, upon 

questioning by the Employer, the Claimant admitted to 

being aware of the Employer’s policy, that she violated the 

Employer’s policy by accessing a customer’s record 

without the customer being present and producing a state 

identification replacement card which she provided to a 

coworker at [his] request and that Claimant “should have 

known better.”

13. Prior to termination, the Employer goes through a 

lengthy review process once fact-finding is completed and 

terminations must be approved by the HR director and 

deputy secretary of the office of administration. 

Findings of Fact, Nos. 3, 5, 6, 8, 12, 13.

The referee concluded that Employer presented sufficient competent 

evidence to establish the existence of its confidentiality policy, that Claimant was or 

should have been aware of that policy, and that Claimant violated Employer’s policy 

by accessing information and producing a Pennsylvania state identification card for 

a family member of a coworker who was not present. The referee noted that 

“Claimant admitted to the Employer during questioning that she was aware that said 
MHW - 4

action was not authorized and that she should have ‘known better.’” Referee’s 

decision at 3. 

The referee also rejected Claimant’s testimony that she relied on her 

knowledge of an existing POA to issue the document for her coworker. In doing so, 

the referee cited Claimant’s failure to raise that explanation at any point during her 

discussions with Employer. Referee’s decision at 4. Finally, the referee concluded 

that Claimant’s failure to explain the reason for her actions to Employer precluded

a finding of good cause for her conduct. Id. 

The Board adopted the referee’s findings and conclusions. The Board 

did not rest its decision on the authenticity of the POA, but agreed with the referee’s 

reasoning that Claimant’s failure to explain her conduct to Employer vitiated her 

good cause argument. 

On appeal to this Court, Claimant argues that the Board erred by 

ignoring the legal effect of the POA in determining whether Claimant committed 

disqualifying willful misconduct. More specifically, Claimant argues that Employer 

failed to prove that its policy would have required her coworker’s son to be present 

when her coworker, acting under the authority granted to him by the POA, made the 

request of Claimant. Claimant asserts that because of the POA, the application 

presented by her coworker should have been considered as having been made by his 

son directly. For these reasons, Claimant argues that substantial evidence does not 

exist to support the Board’s findings and conclusions that Claimant committed 

disqualifying willful misconduct under Section 402(e).

Initially, there is no question that, in creating and enforcing 

employment policies and workplace rules, employers are free to prohibit conduct 

that is not illegal, such as personal use of computers, concurrent employment, or 
MHW - 5

vulgarity. Likewise, employers may impose workplace requirements that are not 

imposed by governmental statute or regulation, such as safety and security 

procedures and reporting of absences. See Crabbe v. Unemployment Compensation 

Board of Review, 179 A.3d 1183 (Pa. Cmwlth. 2018). 

In Crabbe, the employer informed several employees, including the 

claimant, that they must obtain background checks and clearances required under 

the Child Protective Services Law (CPSL), 23 Pa. C.S. §§6301-6386, by June 29, 

2015. On July 23, 2015, after sending reminder emails, the employer advised 

employees who had not complied that they had 48 hours to do so. The claimant was 

discharged because she did not submit all her clearances by the deadline imposed by 

her employer. The local service center, referee, and the Board held that she was 

discharged for willful misconduct rendering her ineligible for benefits. 

On appeal to this Court, we rejected the claimant’s contention that the 

employer had not given her accurate legal deadlines for obtaining clearances and 

held that the claimant had waived this argument. Alternatively, we explained: 

even if the issue were not waived, [c]laimant’s argument 

would fail, as [e]mployer’s alleged mistaken reading of the 

[CPSL] and the referee’s inclusion of a finding regarding 

compliance deadlines for new volunteers, which was 

inapplicable to [c]laimant, had no impact upon the 

referee’s conclusion that [c]laimant’s actions amounted to 

willful misconduct. Essentially, [c]laimant argues that 

because, in retrospect, she has identified that [e]mployer’s 

rule regarding the July 1, 2015 deadline was, in her 

opinion, based upon an erroneous reading of Act 15, an 

error which the referee did not realize, [c]laimant’s choice 

not to comply with the [e]mployer’s rule was excusable 

because the rule was unreasonable.
MHW - 6

179 A.3d at 1190. We agreed with the Board that, regardless of the fact that the 

statutory deadline for obtaining clearances was December 31, 2015, both parties 

understood the employer’s deadline to be the earlier date. 

As in Crabbe, Claimant and Employer understood her actions to be in 

violation of Employer’s policy. By basing its decision on the validity and legal effect 

of the POA, the majority fails to recognize the distinction between conduct that is 

legally permissible and rules of conduct an employer has the right to adopt in its 

workplace. Thus, the majority errs in holding that because Claimant’s conduct was 

permitted by law, it did not violate Employer’s policy. 

Further, while the majority determines that the referee “misread”

Employer’s policy, the only relevant interpretation is the parties’ understanding of 

Employer’s work rule. Crabbe. Whether the referee, or this Court, would interpret 

the language of that policy differently is of no moment. In this appeal, our appellate 

role is not to offer a correct legal interpretation of the policy. Rather, we are to 

consider only whether the Board’s findings are supported by substantial evidence, 

and, if so, whether the Board’s findings support the Board’s legal conclusion. The 

Board’s findings that Employer and Claimant understood the policy to prohibit 

Claimant’s conduct are supported by the testimony and documentary evidence of 

record. Even if this Court would interpret the evidence differently, the evidence 

relied on by the Board supports the Board’s findings that Employer’s policy 

prohibited giving information to a person other than the named customer. 

Claimant’s admissions at the pre-disciplinary conference support the Board’s

findings that she was aware her conduct violated Employer’s policy. Claimant failed 
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to demonstrate good cause for her actions because the Board rejected Claimant’s 

testimony that she relied on her knowledge of the POA as not credible.2

Respectfully, that should be the end of our inquiry. In considering 

testimony that the policy does not contemplate POAs, does not specifically require 

the physical presence of an individual subject to guardianship, and/or reflects an 

ambiguity, the majority strays from the bounds of appropriate appellate review by 

considering evidence that would support a contrary determination3 and by 

addressing an issue that is not raised on appeal. Pa. R.A.P. 2116.

Our Supreme Court has repeatedly admonished that this Court is not to 

indulge in the process of weighing of evidence and resolving conflicting testimony. 

See, e.g., Popowsky v. Pennsylvania Public Utility Commission, 706 A.2d 1197, 

1201 (Pa. 1997) (Commonwealth Court exceeded its scope of review and erred by 

failing to give deference to the views of the agency). See also, Commonwealth v. 

Korchak, 483 A.2d 1360, 1361 (Pa. 1984) (appellate courts are limited to an 

examination of the testimony to determine whether the findings of fact are supported 

 

2 Additionally, the Board correctly held that Claimant’s failure to raise the POA as a reason 

for her actions to Employer precluded her from asserting its existence as justification for her 

conduct on appeal. 

3 The fact that a witness has presented a version of the facts different from that accepted 

by the Board is not a basis for reversal if substantial evidence supports the Board’s findings. 

Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. 

Cmwlth. 1994). “It is irrelevant whether the record contains evidence to support findings other 

than those made by the fact-finder; the critical inquiry is whether there is evidence to support the 

findings actually made.” Ductmate Industries, Inc. v. Unemployment Compensation Board of 

Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citation omitted). “In an unemployment 

compensation case, the findings of fact made by the Board, or by the referee, are conclusive on 

appeal so long as the record, taken as a whole, contains substantial evidence to support those 

findings.” Brandt v. Unemployment Compensation Board of Review, 643 A.2d 78, 79 (Pa. 1994) 

(emphasis added) (citing Vann v. Unemployment Compensation Board of Review, 494 A.2d 1081, 

1086 (Pa. 1985); PenFlex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984); Soja v. Pennsylvania 

State Police, 455 A.2d 613, 618 (Pa. 1982)). 
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by competent evidence and to correct any erroneous conclusions of law); St. 

Joseph’s Hospital v. Pennsylvania Labor Relations Board, 373 A.2d 1069, 1071 (Pa. 

1977) (the scope of an appellate court’s review is limited to determining whether the 

Board’s findings are supported by substantial evidence and whether the conclusions 

drawn from those facts are reasonable, and not capricious, arbitrary, or illegal). 

For the above reasons, I would affirm. 

MICHAEL H. WOJCIK, Judge