IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gemma M. Sawa, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 84 C.D. 2015

Respondent : Submitted: August 28, 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: October 20, 2015

Gemma M. Sawa (Claimant), petitions for review of the Order of the 

Unemployment Compensation Board of Review (Board) that affirmed the 

Referee’s denial of benefits to Claimant under Section 402(e) of the 

Unemployment Compensation Law (Law).1

I. Background.

The facts, as initially found by the Referee and confirmed by the 

Board, are as follows:

1. The claimant was employed as a full-time Alarm 

Monitor and Telecommunicator with the employer from 

March 23, 2013 until June 3, 2014 at the final rate of pay 

of $20.30 per hour.

 

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

§802(e).
2

2. Prior to March 23, 2013, the claimant was also 

employed with the employer’s Resources Development 

Group.

3. The employer requires all employees to complete 

yearly training on computer and internet usage.

4. The employer’s policy permits limited use of the 

Internet.

5. The employer also has a government Internet usage 

policy, as there is a contract to provide emergency 

communications services to the federal protective 

service.

6. The employer reviews the policies with the 

employees.

7. The employees are required to be compliant with the 

software and information technology usage policy in the 

workplace.

8. The employer has a progressive disciplinary policy.

9. The employer skips the steps in the policy if the 

offense is egregious.

10. The claimant and a co-worker had a verbal 

altercation as the co-worker asked the claimant’s 

assistance in answering the phones.

11. The claimant was not attending to her work, which 

caused the co-worker to pick up additional work.

12. The claimant refused to answer the phones.

13. The co-worker was over-burdened by the claimant’s 

actions in not doing her work; the claimant’s actions also 

had a potential for putting the federal police officers in 

danger.

14. An investigation was conducted.
3

15. The claimant’s browser history was reviewed.

16. The browser history indicated that the claimant was 

attending on-line courses, was taking tests during the 

work hours.

17. The investigation indicated that...over a period of 

almost two months the claimant had devoted 41.08 hours 

towards unapproved activities for which she was paid.

18. The claimant’s conduct was considered so egregious 

that the employer discharged the claimant for violation of 

their policies.

Referee’s Decision (Decision), August 11, 2014, Findings of Fact (F.F.) Nos. 1-18

at 1-2; Reproduced Record (R.R.) at 000039a-000040a.

The Referee determined:

At the Referee’s hearing, the employer’s witness 

provided competent and credible testimony and 

documentary evidence, which established that the 

claimant during her work hours had spent 41.08 hours 

from March 16, 2014 until May 9, 2014 by [sic] taking 

online education courses, which resulted in her failure to 

perform her job duties. The employer’s witness testified 

that the claimant’s conduct was so egregious that the 

employer had to skip the steps in the progressive 

discipline policy and discharge the claimant without 

issuing a prior warning. The employer’s witness stated 

the browser history indicated that the claimant had on 

certain days spent a total of 560 minutes doing her 

homework and taking educational courses. The 

employer stated that limited use of the internet is 

permitted but the claimant’s conduct was in flagrant 

disregard of the employer’s policies, affected her work, 

and caused the other employees to be overburdened. The 

employer added that the claimant’s conduct also created 

a potential for putting the federal police officers in 

danger. The employer added that in the past too [sic] 
4

employees were discharged for violation of the 

employer’s internet usage policy. Therefore, the 

employer discharged her from employment.

In the present case, the claimant stated that other 

employees were also using the employer’s computers and 

there was no policy, [sic] which stated that they could not 

do so. The claimant’s witness, her sister, who is also an 

employee of the employer stated that other employees 

also used the internet. The testimony of the claimant and 

that of her sister was not credible.

Based on the competent and credible testimony provided 

by the employer’s witness, the Referee finds that the 

claimant devoted her time by logging onto the online 

courses, would spend an inordinate amount of time on a 

given day doing her homework or taking the educational 

courses. Here, the Referee finds that the claimant’s 

conduct was in disregard of the standards of behavior that 

an employer has the right to expect of an employee and is 

also considered a theft of time, as the claimant got paid 

for the work she did not do. As such, the Referee finds 

that the claimant’s conduct was also inimical to the 

employer and not in the best interest of the employer. 

Therefore, the Referee finds that the claimant is ineligible 

for benefits under Section 402(e) of the Law.

Decision at 2-3; R.R. at 000040a. (Emphasis added.)

The Board affirmed.

II. Present Controversy.

Claimant contends2that the Board erred when it determined that she 

was ineligible for benefits under Section 402(e) of the Law. Essentially, Claimant 

 

2

This Court’s review in an unemployment compensation case is limited to a 

determination of whether constitutional rights were violated, errors of law were committed, or 

(Footnote continued on next page...)
5

argues: 1) that RDG-GCS Joint Venture III (Employer) did not previously or 

uniformly enforce its policies regarding improper use of the internet; 2) that the 

Board did not rely on substantial, competent evidence when it determined that 

Claimant was not credible; and 3) that Employer failed to follow its progressive 

disciplinary policy.

3

 

(continued...)

findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment 

Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).

3

In her “Statement of Question Involved,” Claimant listed the following issue:

1. Did the Unemployment Compensation Board of Review err in 

determining that Gemma Sawa [Claimant] was ineligible for 

benefits where she was allegedly terminated for violating the 

employer’s internet use policies and for neglecting her job duties, 

and where:

(1) The record evidence is clear that the employer had not 

previously enforced these policies and that once Ms. Sawa 

[Claimant] was put on notice that the employer intended to 

begin enforcing them, she did not engage in further 

violations of these policies;

(2) The Board relied solely upon hearsay evidence, and 

chose to disbelieve Ms. Sawa’s [Claimant’s] non-hearsay 

testimony to the contrary, in reaching its conclusion that 

Ms. Sawa [Claimant] used the internet ‘to the neglect of her 

job duties’;

(3) The Board adopted the factual conclusion of the 

Referee that Ms. Sawa [Claimant] was actively using the 

internet for extended periods of time, despite no credible 

testimony or other evidence to that effect, and despite Ms. 

Sawa’s [Claimant’s] testimony to the contrary;

(4) The employer did not follow its progressive discipline 

policy in terminating Ms. Sawa [Claimant];

(5) The employer did not uniformly enforce its rule; and

(6) Ms. Sawa [Claimant] was singled out for retaliation for 

complaints she had made against her second-level 

supervisor- the decision-maker with respect to the decision 

(Footnote continued on next page...)
6

First, Claimant argues that Employer did not previously enforce its 

policies regarding improper use of the internet.

Whether a claimant’s conduct rises to the level of willful misconduct 

is a question of law subject to this Court’s review. Lee Hospital v. Unemployment 

Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful 

misconduct is defined as conduct that represents a wanton and willful disregard of 

standards of behavior which an employer can rightfully expect from the employee, 

or negligence which manifests culpability, wrongful intent, evil design, or 

intentional and substantial disregard for the employer’s interest or employee’s 

duties and obligations. Frick v. Unemployment Compensation Board of Review, 

375 A.2d 879 (Pa. Cmwlth. 1977). The employer bears the burden of proving that 

it discharged an employee for willful misconduct. City of Beaver Falls v. 

Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). 

The employer bears the burden of proving the existence of the work rule and its 

violation. Once the employer establishes that, the burden then shifts to the 

claimant to prove that the violation was for good cause. Park v. Unemployment 

Compensation Board of Review, 501 A.2d 1383 (Pa. 1985).

In the present case, Employer established that it had a policy which 

prohibited the use of computers for private purposes. Employer’s Electronic and 

 

(continued...)

to enforce the internet use rule against Ms. Sawa 

[Claimant]?

....

Claimant’s Brief, Statement of Question Involved at 10-11.
7

Telephonic Communications policy explained, “Accessing inappropriate 

information and materials via any Company/client system is strictly prohibited. 

‘Inappropriate’ would include...sites which include...any non-business related use. 

The use of any software and business equipment, including...computers...for 

private purposes is prohibited. Employees who violate these rules will be subject 

to disciplinary action up to and including termination.” Employer’s Policy at 20-

21; R.R. at 000128a-000129a. The Department of Homeland Security also had an 

enforceable Information Technology security policy that required its “office 

equipment to be used for official use, with only limited personal use allowed.” 

Homeland Security Policy at 2; R.R. at 000121a. Claimant signed an agreement to 

comply with the computer and internet policy of Employer and Homeland Security

on May 2, 2013, and June 25, 2012, respectively. See Homeland Security 

Acknowledgement Statement and RGJV Employee Handbook Acknowledgement 

of Receipt; R.R. at 126a and 131a. An investigation into Claimant’s browser 

history indicated that Claimant spent 41.08 hours on unapproved activities in an 

approximate two month period. Decision at 2, F.F. 17; R.R. at 000040a. 

Sheila McCombs (Ms. McCombs), Director for Employer, testified 

that Claimant was discharged because she violated both the Government Internet 

policy and the Employer’s Employee Handbook policy regarding internet usage. 

Notes of Testimony, August 6, 2014, (N.T.) at 10; R.R. at 000014a. Ms. 

McCombs credibly testified that both policies were equally enforced. N.T. at 11; 

R.R. at 000015a. On May 9, 2014, there was an altercation between Claimant and 

another employee that led Employer to conduct an investigation into the internet 

usage of multiple employees. N.T. at 11; R.R. at 000015a-000016a. The 
8

investigation revealed that Claimant was the only employee spending an excessive 

amount of time taking online classes. Notably, Ms. McCombs credibly testified 

that other employees were previously discharged for misuse of the computer 

policy. N.T. at 12; R.R. at 000016a.

In unemployment compensation proceedings, the Board is the 

ultimate fact-finding body empowered to resolve conflicts in evidence, to 

determine the credibility of witnesses, and to determine the weight to be accorded 

evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 

(Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the 

record, taken as a whole, provides substantial evidence to support the findings. 

Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 

1977). The Board adopted and incorporated the Referee’s findings into its Order. 

This Court finds no error.

Claimant also contends that Employer did not uniformly enforce its 

policy regarding internet usage and that Paul Kelley, Project Manager for 

Employer (Mr. Kelley), enforced this policy only against Claimant as a means of 

retaliation for complaints she had previously made about him.

Mr. Kelley credibly testified that he had personally terminated another 

employee who violated Employer’s Internet use policy by accessing “college sites” 

prior to this incident with Claimant. N.T. at 21-22; R.R. at 000025a-000026a.
9

The Board did not credit the testimony of Claimant and her sister 

Jacqueline Sawa (Ms. Sawa), a Dispatch Supervisor for Employer, that other 

employees accessed the internet for personal use. N.T. at 23 and 32; R.R. at 

000027a and 000036a.

The Board determined that Employer shouldered its burden to prove 

that Claimant’s actions rose to the level of willful misconduct. 

The Board does not credit claimant’s testimony that her 

supervisor was aware of her excessive internet usage, that 

the employer’s policy was vague, and that the employer 

did not enforce its internet policy. The policy is clear, 

and the claimant’s excessive use of the internet on work 

time to the neglect of her job duties was in violation of 

the policy.

Board’s Decision, December 24, 2014, at 1. (Emphasis added.)

As finder of fact, the Board determined that Claimant devoted 41.08 

hours towards unapproved activities for which she was paid. This excessive 

personal use of the internet exhibited a sufficient disregard of Employer’s interests 

to constitute willful misconduct. Employer established that it had a rule and that 

Claimant violated that rule. Additionally, Claimant failed to provide good cause 

for violating the rule.4 

 

4

Assuming arguendo that Employer failed to establish that it had an enforceable policy 

regarding internet usage, Claimant’s argument would still fail. The existence of a specific rule is 

not necessary where the employer has a right to expect a certain standard of behavior, that 

standard is obvious to the employee, and the employee’s conduct is so inimical to the employer’s 

interests that discharge is a natural result. Ellis v. Unemployment Compensation Board of 

Review, 59 A.3d 1159, 1162 (Pa. Cmwlth. 2013).
10

Further, Claimant failed to establish that Employer did not uniformly 

enforce its policies when it discharged Claimant or that she was discharged due to 

retaliation. This Court will not reweigh the factual findings of the Board.

Second, Claimant argues that the Board did not rely on substantial, 

competent evidence when it determined that Claimant was not credible. More 

specifically, Claimant argues that the Board relied on hearsay evidence to 

determine that Claimant used the internet “to the neglect of her job duties.” 

Board’s Decision at 1.

Hearsay is defined as a “statement, other than one made by the 

declarant while testifying at the trial or hearing offered in evidence to prove the 

truth of the matter asserted.” Pa.R.E. 801(c). A “statement” is defined in the 

Pennsylvania Rules of Evidence as “(1) an oral or written assertion or (2) 

nonverbal conduct of a person it if is intended by the person as an assertion.” 

Pa.R.E. 801(a).

Here, Ms. McCombs testified that she became aware of Claimant’s 

misuse of the internet after Claimant had a verbal altercation with a co-worker on 

May 9, 2014, where the co-worker accused Claimant of “neglecting her work.” 

N.T. at 11; R.R. at 000015a. The co-worker complained that she had to handle a 

“high volume of dispatching activity” because Claimant was not attending to her 

work. N.T. at 11; R.R. at 000015a. Mr. Kelley testified that there are “officer 

safety issues involved” that require employees to adhere to Employer’s internet 

usage policy. N.T. at 17; R.R. at 000021a. Claimant’s co-worker’s statements 
11

merely prompted Employer to conduct an investigation which revealed that 

Claimant spent 41.08 hours logged into an educational site. These statements were 

offered to show their effect on Ms. McCombs and Mr. Kelley- which led them to 

have cause for concern that Claimant was abusing the internet policy- and not to 

show that Claimant was abusing Employer’s policy. These statements were not 

offered for the truth of the matter asserted and were, therefore, not hearsay. See, 

e.g. In re Shahan, 631 A.2d 1298, 1304 (Pa. Super. 1993) (stating, “[s]ince the 

statement was not admitted for its truth, but rather its effect on the listener, the 

statement was not hearsay.”) 

Third, Claimant contends that Employer failed to follow its 

progressive discipline policy.

Ms. McCombs explained that Employer had a progressive discipline 

policy that consisted of a verbal warning, then a written warning or some form of 

counseling, and then additional discipline up to and including termination. N.T. at 

13; R.R. at 000017a. However, Ms. McCombs testified that she did not follow that 

policy “because her [Claimant’s] behavior was so egregious no prior warning was 

necessary.” N.T. at 14; R.R. at 000018a.

This Court has held that even if an Employer has a progressive 

discipline policy, an offense may be so serious as to warrant immediate discharge. 

Frigm v. Unemployment Compensation Board of Review, 642 A.2d 629 (Pa. 

Cmwlth. 1994). Here, there was substantial evidence to support a finding that 

Claimant’s violation of the internet usage policy was so serious that Employer 
12

acted in compliance with its disciplinary policy when it discharged her without 

prior warning.

Accordingly, the decision of the Board is affirmed.

____________________________

BERNARD L. McGINLEY, Judge

 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gemma M. Sawa, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 84 C.D. 2015

Respondent :

O R D E R

AND NOW, this 20th day of October, 2015, the decision of the 

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

affirmed.

____________________________

BERNARD L. McGINLEY, Judge