IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lori J. Shoemaker, :

Petitioner :

:

v. : No. 1717 C.D. 2014

: Submitted: June 26, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE LEAVITT FILED: October 19, 2015

Lori Shoemaker (Claimant) petitions for review of an adjudication of 

the Unemployment Compensation Board of Review (Board) denying her claim for 

unemployment compensation benefits. In doing so, the Board affirmed the 

decision of the Referee that Claimant was ineligible for benefits under Section 

402(e) of the Unemployment Compensation Law (Law), 43 P.S. §802(e),1by 

reason of her willful misconduct. For the reasons that follow, we affirm.

Claimant was employed as a transit driver for Easton Coach Company 

(Employer) from January 25, 2004, until she was discharged on April 11, 2014. 

 

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

which states that a claimant is ineligible for unemployment compensation whenever his 

“unemployment is due to his discharge or temporary suspension from work for willful 

misconduct connected with his work ....”
2

Claimant’s duties required her to transport elderly and handicapped individuals in a 

small bus. Claimant was discharged for violating Employer’s policy requiring

drivers to drive safely. Claimant applied for unemployment benefits, which were 

denied by the Scranton Unemployment Compensation Service Center. Claimant 

appealed.

At the Referee’s hearing, Employer presented the testimony of its 

Operations Manager, Tracey Deater, and a video recording of an incident that 

occurred on April 8, 2014, while Claimant was on her regular route. Deater 

testified as follows:

[Employer]: And can you explain in detail about the incident 

that occurred on, it was April 8th, on Route 78.

[Deater]: [Claimant] was driving on the shoulder of the 

highway clocked at 71 miles per hour.

[Employer]: And how were you made aware of this incident?

[Deater]: The drive cam went off.

[Employer]: And can you explain what the drive cam is?

[Deater]: A drive cam is installed in all our vehicles, it’s set off 

by a G-force -- sudden braking, an accident -- and it shows 10 

seconds prior to and 10 seconds after the incident.

[Employer]: And what did you do when you were made [aware] 

of this drive cam incident with [Claimant]?

[Deater]: We brought [Claimant] into the office and we sat her 

down, we reviewed the drive cam with her. And she stated that 

this is something that she did on a regular basis was ride the 

shoulder because she was getting off on the next exit and did 

not seem too concerned over it since it was a habit that she had 

seemed to have picked up.
3

Notes of Testimony, June 12, 2014, at 8 (N.T. ___); Reproduced Record at 20a 

(R.R.__). Deater testified further regarding Claimant’s reaction to viewing the 

video:

She saw the drive cam and the first word she said was oops. 

And then she didn’t see the dangerous stuff, the other cars in 

front of her were doing the same thing, and it was something 

that she did prior to; it wasn’t something new to her.

N.T. 11; R.R. 23a. 

Claimant appeared pro se and testified on her own behalf. She 

offered the following explanation for driving her bus on the shoulder on April 8, 

2014:

Well the video shows what happened but the reason it happened 

was because the car in front of me braked when I was getting 

off into the lane to get off the exit. The car in front of me 

braked so I braked and I went over to the side because I knew 

there was plenty of room over there and if -- you can’t see 

behind me on those videos but the lane getting off when you 

come down over the hill the third lane that all the trucks use 

those guys when you’re coming down over that hill they’re 

moving because they’re picking up speed now from being 

going up the hill slow, they get to the top, and they start picking 

up speed. When you come around the corner there when you 

come off the exit there’s not a separate exit until maybe 50 feet 

is the exit but the cars are backed up on that shoulder of the 

road on that right hand lane and these cars behind me and trucks 

behind me are barreling down. I’d rather be on the side of the 

road in case one of those trucks don’t see the brake lights that 

I’m not going to be involved in an accident. That’s why I did 

it. I didn’t do it because I couldn’t handle the bus, I did it for a 

specific reason; I didn’t want to get rear ended by a bunch of 

tractor trailers heading down the hill going 60 miles an hour.

N.T. 14; R.R. 26a.
4

The Referee found, inter alia, that Employer “has a policy prohibiting 

the unsafe operation of all company vehicles” and Claimant “admitted to the 

actions observed on the video indicating it was her regular way of travel.” 

Referee’s Decision/Order at 1, Findings of Fact No. 2 and 6. Accordingly, the 

Referee held that Claimant committed disqualifying willful misconduct. Claimant 

appealed to the Board, which adopted the Referee’s findings and conclusions and 

affirmed the denial of benefits under Section 402(e) of the Law. The Board 

specifically discredited Claimant’s proffered justification for her conduct, i.e., “that 

she was riding on a non-authorized lane of traffic in order to avoid an accident.” 

Board Adjudication at 1. Claimant petitions for this Court’s review.

On appeal,2 Claimant argues that the Board erred in concluding that 

she lacked good cause for violating Employer’s policy. Alternatively, Claimant 

asserts that she was denied a fair hearing because she was not represented by 

counsel and the Referee was biased against her. 

Willful misconduct has been defined by the Pennsylvania courts as, 

inter alia, “a violation of work rules or a disregard of standards of behavior an 

employer has the right to expect of employees.” ATM Corporation of America v. 

Unemployment Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 

2006). If a claimant is discharged for violating a work rule, the employer bears the 

initial burden of showing “the existence of a work rule and that the claimant 

violated the rule.” Id. “Once the employer establishes those elements, the burden

then shifts to the claimant to show that she had good cause to violate the rule.” Id.

 

2

This Court’s review is limited to determining whether the factual findings are supported by 

substantial evidence, constitutional rights were violated, or an error of law was committed. 

Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024, 1026 n.3 (Pa. Cmwlth. 

2009).
5

Here, Employer’s demonstrative and testimonial evidence established 

that Claimant violated Employer’s safe driving policy, of which she was aware. 

Thus, the burden shifted to Claimant to show that she had good cause for violating 

the policy when she speeded down the shoulder of Route 78. Claimant contends 

that her conduct was reasonable because she feared being rear-ended by a tractor 

trailer. Claimant likens the circumstances of her discharge to those of the 

claimant’s in McLean v. Unemployment Compensation Board of Review, 383 A.2d 

533 (Pa. 1978).

In McLean, a claimant refused to operate a truck that he believed was

unsafe because of a series of improper repairs made by the same garage. The 

employer disagreed with the claimant’s opinion and ordered him to drive the truck. 

When the claimant refused, the employer discharged him for willful misconduct. 

The Board denied benefits under Section 402(e) of the Law, and this Court 

affirmed. On appeal, our Supreme Court reversed, reasoning that: 

In light of the demonstrated inadequacy of [the previous] repair 

services, the employer’s demand that [the claimant] drive the 

truck was unreasonable to the extent that the employer insisted 

it be repaired only by [the same service shop]. The employer 

had no right to expect an employee to rely upon a repair service 

which had twice failed in making repairs essential to safe 

operation; hence, the employee did not disregard a reasonable 

employer’s request.

McLean, 383 A.2d at 536. Accordingly, in that instance, the claimant’s decision to 

reject his employer’s orders did not amount to willful misconduct.

McLean is not analogous to the matter sub judice. In McLean, there 

was no dispute regarding the facts; the employer acknowledged that the truck had

been improperly repaired twice by the same garage. Here, Claimant and Employer 

presented conflicting evidence about why Claimant drove on the highway 
6

shoulder. Claimant testified that she was trying to avoid being rear-ended by a 

tractor trailer. Deater testified that Claimant admitted after the incident that she 

habitually drove on the shoulder in this location. The Board adopted Employer’s 

version of the facts and found Claimant not credible. 

Essentially, Claimant asks this Court to reweigh the evidence and 

render new credibility determinations. However, “the Board is the ultimate finder 

of fact, and questions of credibility and evidentiary weight to be given to 

conflicting testimony which was found to be credible are matters for the Board as 

factfinder and not for a reviewing court.” Stringent v. Unemployment 

Compensation Board of Review, 703 A.2d 1084, 1087 (Pa. Cmwlth. 1997). Thus, 

because Claimant offered no credible evidence that she had good cause for her 

conduct, the Board did not err in denying her benefits under Section 402(e) of the 

Law. 

Claimant argues in the alternative that she was denied a fair hearing

because she “was unrepresented during the Referee’s hearing and really was not 

given a full adequate opportunity to explain her situation. The Referee controlled 

the hearing and was asking leading questions which were sited [sic] to 

[E]mployer.” Claimant’s Brief at 11-12. Claimant concludes that if she “had 

counsel, most likely there would have probably been a different result.” Id. at 12. 

Claimant’s argument lacks merit. Claimant was informed of her right 

to proceed with counsel in the notice of hearing she received in the mail. Then, at 

the start of the hearing, the Referee advised both parties that they had the right to 

be represented by counsel. Claimant stated that she understood and chose to 

proceed pro se. Accordingly, the issue is waived. Moonlight Mushrooms, Inc. v. 

Unemployment Compensation Board of Review, 596 A.2d 1264, 1268 (Pa. 
7

Cmwlth. 1991). In any case, because Claimant did not raise this issue in her 

appeal to the Board, it is waived. Schneider v. Unemployment Compensation 

Board of Review, 523 A.2d 1202, 1204 (Pa. Cmwlth. 1987). 

For all of the foregoing reasons, the order of the Board is affirmed.

 ______________________________

 MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lori J. Shoemaker, :

Petitioner :

:

v. : No. 1717 C.D. 2014

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 19th day of October, 2015, the order of the 

Unemployment Compensation Board of Review dated August 26, 2014, in the 

above-captioned matter is hereby AFFIRMED.

 ______________________________

 MARY HANNAH LEAVITT, Judge