IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Community Charter :

School, :

Petitioner :

: No. 1180 C.D. 2015

v. :

: Submitted: November 20, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: February 17, 2016

Chester Community Charter School (Employer) petitions for review of 

the June 15, 2015 order of the Unemployment Compensation Board of Review 

(Board), which affirmed a referee’s decision that Shanique E. Fontaine (Claimant) 

was not ineligible for benefits under section 402(e) of the Unemployment 

Compensation Law (Law).2

 

1

This case was assigned to the opinion writer on or before December 31, 2015, when 

President Judge Pellegrini assumed the status of senior judge. 

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 will be ineligible for unemployment 

compensation for any week “[i]n which his unemployment is due to discharge or temporary 

suspension from work for willful misconduct connected with his work.” 43 P.S. §802(e). 
2

Facts and Procedural History

Claimant worked full-time as a Principal Secretary for Employer from 

August 28, 2013, until her last day of work on January 23, 2015. The local service 

center determined that Claimant was ineligible for unemployment compensation 

benefits because she committed willful misconduct. Claimant appealed that 

determination to a referee who held a hearing on April 16, 2015. 

The underlying facts are largely undisputed. Susan Wadkins (Wadkins), 

Employer’s Director of Human Resources, testified that Employer has a policy 

contained within its code of conduct which prohibits the falsification of records or 

documents and provides that violation of its policy is grounds for disciplinary action 

up to and including termination. Wadkins stated that Employer’s code of conduct is 

contained within an employee handbook which is distributed to employees at the 

beginning of every year and produced a signed acknowledgment form indicating that 

Claimant received an employee handbook. Wadkins testified that she terminated 

Claimant for violating Employer’s code of conduct; specifically, Wadkins terminated 

Claimant for falsifying employee time cards. (Reproduced Record (R.R.) at 5a-8a.) 

Wadkins further testified that Employer classifies its paraprofessional 

staff members as hourly employees and authorizes them to work a maximum of 

twenty-nine hours per week. Wadkins stated that part of the Principal Secretary’s 

duties is time keeping; that is, the Principal Secretary must review employees’ time 

cards, confirm that they are working no more than twenty-nine hours per week, and 

send the time cards to the payroll department. Wadkins stated that, if an employee 

works more than twenty-nine hours per week, the Principal Secretary should notify 
3

the Principal and the Principal would modify the schedule to ensure that the

employee only works twenty-nine hours per week. (R.R. at 9a, 13a.) 

Wadkins testified that employees had been approaching Claimant about 

scheduling issues that she was not authorized to resolve. As a result, Wadkins 

arranged a meeting with Claimant and Diane Stover (Stover), Employer’s Director of 

Child Accounting, on January 9, 2015, to discuss Claimant’s time-keeping duties and 

other issues. At the meeting, Wadkins advised Claimant that, if employees were 

having issues with the schedule or were not doing what they were told, the issue 

should be reported to her immediate supervisor, the Principal. If the Principal could 

not remedy the situation or was unavailable, Claimant could report the issue to 

Wadkins or Stover. Wadkins testified that, at the January 9, 2015 meeting, she 

informed Claimant that Employer does not alter time cards and denied previously 

advising Claimant to alter and initial a time card when an employee worked more 

than twenty-nine hours in a week. Wadkins explained that Employer would pay an

employee for all time worked if an employee worked more than twenty-nine hours

per week; however, Employer monitored employees’ hours and could discipline an 

employee who exceeded the hour limit. (R.R. at 12a-14a.) 

Wadkins stated that, on January 23, 2015, Claimant sent Wadkins an 

email, advising her that certain paraprofessional staff members had worked more than

twenty-nine hours per week during the relevant pay period. Pursuant to the email, 

Claimant informed Wadkins that she had altered the time cards to reflect that those 

employees only worked twenty-nine hours and initialed the time cards to indicate that 

she made the changes; specifically, Claimant altered the times that employees had 

clocked-in or clocked-out of work. Wadkins explained that Stover replied to 

Claimant’s email and advised her that she could not modify the hours that employees 
4

had worked because it violated state wage laws. Claimant apologized and insisted 

that she would not alter time cards in the future. Wadkins testified that she suspended 

Claimant pending an investigation to determine whether Claimant had violated 

Employer’s policy prohibiting the falsification of records or documents. Wadkins 

further testified that she and Stover reviewed the relevant time cards and concluded

that Claimant had violated Employer’s policy prohibiting the falsification of records

and, consequently, terminated Claimant. (R.R. at 10a-11a.) 

Stover confirmed that employees were approaching Claimant to discuss 

scheduling issues that she was not authorized to resolve and testified that the purpose 

of Claimant’s weekly review of the time cards was to monitor employees’ hours 

before they were in danger of exceeding the twenty-nine hour weekly limit. Stover 

stated that, at the January 9, 2015 meeting, she and Wadkins advised Claimant that 

changing time cards was unacceptable. 

Claimant testified that she received an employee handbook when she 

was hired which contained Employer’s policy prohibiting the falsification of 

company records and that she was aware that an employee who violated Employer’s 

policy could be subject to discipline up to and including termination. Claimant 

confirmed that she met with Wadkins and Stover on January 9, 2015, to discuss her 

time-keeping duties and stated that, at the meeting, Wadkins and Stover advised her 

that employees were not allowed to work more than twenty-nine hours per week, that 

any issues should be reported to the Principal, and that she could report to Wadkins or 

Stover if the Principal was unavailable. 

Claimant acknowledged that she had altered employees’ time cards, but 

testified that she did not believe Employer’s policy prohibited her from doing so 

because she was working in payroll and initialed the alterations. Claimant explained 
5

that employees were clocking-in fifteen minutes early or staying fifteen minutes late 

and that she had instructed them that they were not allowed to do so, but stated that 

she and the other employees believed that she was responsible for manually adjusting 

the time cards to reflect the hours that employees were scheduled to work. Claimant

testified that she believed Employer’s policy only prohibited staff members from 

altering their own time cards because she had previously changed time cards and 

signed them to indicate that she had made the changes. Claimant stated that she did 

not know that it was illegal to pay an employee for fewer hours than were worked and

that she would not have changed the time cards if she did. Claimant further testified 

that she committed an honest error and, if she knew what she was doing was illegal, 

she would not have initialed the time cards or emailed Wadkins to advise her that she 

made the alterations. (R.R. at 12a, 16a-18a.) 

Following the hearing, the referee determined that Employer presented 

sufficient evidence to prove that it had a policy prohibiting the falsification of 

documents, including time cards, and that Claimant was aware of the policy. 

However, the referee found Wadkins testimony that she specifically advised Claimant 

not to alter time cards at the January 9, 2015 meeting not credible and found 

Claimant’s testimony that she misunderstood the time-keeping instructions she was 

given credible. The referee concluded that Claimant exhibited poor judgment and the 

Employer had the right to discharge her; however, her conduct did not amount to

willful misconduct and, accordingly, she was entitled to compensation benefits. 

Employer appealed the referee’s decision to the Board, which affirmed the referee. 

The Board found Claimant’s testimony that she had previously modified 

and initialed time cards to indicate changes credible, adopted the referee’s findings of 

fact and conclusions of law, and determined that Employer failed to establish that 
6

Claimant intentionally falsified time cards. Accordingly, the Board concluded that 

Claimant’s confusion regarding Employer’s policy did not constitute willful 

misconduct. 

On appeal to this Court,3Employer argues that the Board erred because 

it failed to shift the burden to Claimant and require her to show good cause for 

violating Employer’s policy after Employer established that Claimant was aware of 

and violated Employer’s policy prohibiting the falsification of records. Employer 

also argues that the Board’s conclusion that Claimant did not commit willful 

misconduct is not supported by the record because the Board failed to find that 

Claimant showed good cause for violating a known Employer rule. 

Discussion

Initially, we note that the Law does not define willful misconduct. 

However, our Supreme Court has defined willful misconduct as:

an act of wanton of willful disregard of the employer’s 

interest, a deliberate violation of the employer’s rules, a 

disregard of standards of behavior which the employer has a 

right to expect of an employee, or negligence indicating an 

intentional disregard of the employer’s interests or of the 

employer’s duties and obligations to the employer.

Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa. 

1993). 

 

3 Our scope of review in an unemployment compensation appeal is limited to determining 

whether constitutional rights were violated, whether an error of law was committed, or whether 

necessary findings of facts are supported by substantial evidence. Leace v. Unemployment 

Compensation Board of Review, 92 A.3d 1272, 1274 n.2 (Pa. Cmwlth. 2014). In unemployment 

cases, the Board is the ultimate fact-finder and is empowered to make all determinations regarding 

witness credibility and evidentiary weight and its findings are binding on appeal when supported by 

substantial evidence. Id. at 1276. 
7

An employer alleging willful misconduct bears the burden of proving the 

existence of a reasonable work rule and its violation. Daniels v. Unemployment 

Compensation Board of Review, 755 A.2d 729, 731 (Pa. Cmwlth. 2000). The 

employer must also show that the employee intentionally or deliberately violated the 

work rule. Tongel v. Unemployment Compensation Board of Review, 501 A.2d 716, 

717 (Pa. Cmwlth. 1985); see also MacFarlane v. Unemployment Compensation 

Board of Review, 317 A.2d 324, 326 (Pa. Cmwlth. 1974) (“In all these definitions [of 

willful misconduct] there is an element indicating a consciousness of wrongdoing on 

the part of the employe[e].”). An inadvertent or negligent violation of an employer’s 

rule may not constitute willful misconduct. Grieb v. Unemployment Compensation 

Board of Review, 827 A.2d 422, 426 (Pa. 2003); Morysville Body Works, Inc. v. 

Unemployment Compensation Board of Review, 419 A.2d 238, 239 (Pa. Cmwlth. 

1980). Therefore, a determination of what constitutes willful misconduct requires

consideration of all the relevant circumstances. Rebel v. Unemployment 

Compensation Board of Review, 723 A.2d 156, 158 (Pa. 1998). 

If an employer meets its initial burden to establish the existence of a 

reasonable work rule and its deliberate violation, the burden shifts to the claimant to 

demonstrate good cause for violating the rule. Guthrie v. Unemployment 

Compensation Board of Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999). However, 

where an employer fails to carry its initial burden of proving a deliberate violation, it 

is unnecessary to consider whether the claimant’s conduct constitutes good cause. 

Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 

A.3d 965, 969 (Pa. Cmwlth. 2010). 

Employer asserts that the Board erred because it failed to shift the 

burden to Claimant and require her to establish good cause for violating Employer’s 
8

rule after Employer proved the existence of a reasonable work place rule, Claimant’s 

knowledge of the rule, and its violation. Employer asserts that the Board’s 

determination essentially required Employer to prove that Claimant acted with 

wrongful or malicious intent, which is a departure from established precedent. 

This Court’s decision in Philadelphia Parking Authority v. 

Unemployment Compensation Board of Review, 1 A.3d 965 (Pa. Cmwlth. 2010), is 

instructive. In Philadelphia Parking Authority, the claimant worked the 3:30 p.m. to 

midnight shift as a money-room technician and was required to sit in a room for 

hours at a time with nothing to do. The claimant advised the employer that she 

suffered from sleep apnea and requested additional work to keep her busy and 

prevent her from falling asleep; however, notwithstanding two limited assignments, 

the employer did not offer the claimant additional work. The claimant fell asleep 

during a shift and was terminated for violating the employer’s policy prohibiting 

sleeping on the job. 

The claimant applied for unemployment compensation, but the local 

service center concluded that she was ineligible for benefits because she committed 

willful misconduct when she fell asleep during her shift. The claimant appealed to a 

referee, who reversed the service center and determined that the claimant’s conduct 

did not constitute willful misconduct. The employer appealed to the Board, which 

affirmed the referee and concluded that the claimant’s medical condition constituted 

good cause for violating the employer’s rule. The employer appealed to this Court, 

arguing that the Board erred in relying solely on the claimant’s testimony to 

determine that she suffered from a medical condition that caused her to fall asleep. 

We affirmed on other grounds, reasoning that the employer failed to meet its initial 

burden because it did not prove that the claimant intentionally or deliberately violated 
9

its work rule. Accordingly, we concluded that the burden never shifted to the 

claimant and, therefore, there was no need to consider whether her actions constituted 

good cause for violating employer’s work rule. 

Here, the Board determined that Employer failed to prove that Claimant 

intentionally falsified time cards when she altered them and, therefore, her conduct 

did not constitute willful misconduct. As in Philadelphia Parking Authority, 

Employer did not meet its initial burden because it failed to establish that Claimant 

intentionally or deliberately violated its work rule and the burden never shifted to 

Claimant to prove good cause for her violation. Accordingly, Employer’s argument 

that the trial court erred when it failed to shift the burden to Claimant to prove good 

cause is without merit.

Employer cites a number of cases to suggest that establishing the 

existence of a known work rule and its violation is sufficient to shift the burden to 

Claimant and require her to prove good cause for her violation. The cited authorities 

are factually inapposite to the instant case because a critical component that is absent 

here was that the claimants in those cases were previously warned that their conduct 

violated the employers’ rules. Employer cites testimony from the referee’s hearing to 

suggest that the instant case falls within the purview of the cited authority; 

specifically, Employer states that it “presented testimony that the Claimant was 

expressly told, on January 9, 2015, that she was not to alter the time cards.” 

(Petitioner’s brief at 8.) However, Employer disregards the referee’s specific finding, 

adopted by the Board, that the relevant testimony was not credible. Because the 

referee’s credibility determination is binding on appeal, Employer’s argument fails. 

The sole case Employer cites that does not involve a prior warning is 

Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. 
10

Cmwlth. 1994) (en banc). In Heitczman, the employer’s rule required its truck 

drivers to exit their vehicles before backing up to confirm that their path was 

unobstructed. The claimant did not comply with this rule and an accident occurred. 

On appeal to this Court, the claimant asserted that his conduct did not constitute 

willful misconduct because he did not make a deliberate decision to operate the truck 

improperly. Instead, the claimant argued that he committed an inadvertent mistake 

and his conduct constituted negligence at most. Our Court recognized the existence 

of the employer’s policy and the claimant’s awareness and violation thereof. In our 

decision in Morysville, we noted that an employee violated a shop rule by punching 

the time card of another employee, but we affirmed the Board’s finding that the 

employee’s action was solely based on a mistake because the claimant credibly 

testified that he punched another employee’s timecard because he believed it 

belonged to him. We distinguished Morysville from Heitczman, noting that the 

claimant’s backing-up of his truck without performing a “walk around” was not 

inadvertent or negligent behavior, “but is more akin to disobedience of a direct 

instruction.” Heitzcman, 638 A.2d at 464. 

Here, there was nothing in the record or credible testimony to indicate 

that Claimant was advised contrary to Employer’s policy. Instead, Claimant’s 

credible testimony established that she was confused about Employer’s policy

because she had previously altered time cards and initialed them to indicate that she 

had made the change. (R.R. at 16a-17a.) Therefore, the instant case presents a 

situation where Claimant attempted to comply or believed she was complying with 

Employer’s rule and stands in stark contrast to the disobedience of a direct instruction 

that was at issue in Heitczman. Claimant’s confusion regarding Employer’s policy 

does not amount to willful misconduct and, thus, Employer’s argument is 
11

unpersuasive. See also Frazier v. Unemployment Compensation Board of Review, 

411 A.2d 580, 582 (Pa. Cmwlth. 1980) (“Willful misconduct implies action of an 

intentional and deliberate nature, whereas the present facts indicate an honest mistake 

made by an employee who was aware of his responsibilities and unintentionally erred 

in his efforts to perform them.”). 

Next, although Employer does not challenge any specific findings, 

Employer argues that the Board’s conclusion that Claimant did not commit willful 

misconduct is unsupported by the record because the Board did not find that Claimant 

had good cause for violating a known Employer rule. 

As indicated above, an employer bears the initial burden of proving the 

existence of a work rule and its deliberate violation. The burden shifts to the claimant 

to show good cause only after the employer’s initial burden is met. Where the initial 

burden is not met, there is no need to consider whether the claimant’s conduct 

constitutes good cause. 

Here, the Board found Claimant’s testimony credible that she had 

previously modified time cards and signed them to indicate that she had made the 

changes; that she did not believe Employer’s rule applied to her because she was 

working in payroll and not altering her own time card; that she committed an honest 

mistake and did not know it was illegal to pay employees for fewer hours than they

had worked; and that she would not have initialed the changes and reported them to 

Wadkins if she did. Moreover, the Board adopted the referee’s finding that

specifically discredited Employer’s testimony that Claimant was advised on January 

9, 2015 that she was not to alter time cards. (Referee’s decision at 2; Board decision 

at 1.) Consequently, Employer cannot rely upon this testimony on appeal. 

Metropolitan Edison Company v. Unemployment Compensation Board of Review, 
12

606 A.2d 955, 957 (Pa. Cmwlth. 1992). Here, the credible testimony supports the 

Board’s conclusion that Employer failed to meet its initial burden to establish 

Claimant’s intentional violation of its work rule. Hence, the burden never shifted to 

Claimant and the Board was not obligated to consider whether Claimant’s conduct 

constituted good cause. Philadelphia Parking Authority, 1 A.3d at 969. 

Accordingly, the Board’s order is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chester Community Charter :

School, :

Petitioner :

: No. 1180 C.D. 2015

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 17th day of February, 2016, the June 15, 2015 order 

of the Unemployment Compensation Board of Review is affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge