IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination, :

Petitioner :

:

 v. : No. 920 C.D. 2019

: SUBMITTED: May 15, 2020

Unemployment Compensation Board :

of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: June 9, 2020

Employer, Casey Ball Supports Coordination, 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, Tara K. Dieteman, 

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 adjudication of the Board.

The facts found by the Board are as follows. Employer provides case 

management services to senior citizens and individuals with physical disabilities. 

Claimant worked as a full-time service coordinator and her duties included making 

contact with consumers and inputting information into a computer following her 

encounters. She worked for Employer from July 18, 2015, until February 26, 2019, 

at a final hourly rate of $18.00. (Board’s June 21, 2019, Decision, Finding of Fact 

“F.F.” No. 1.)

 

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

In January 2019, Employer’s billing procedures changed when it 

partnered with Pennsylvania Health and Wellness (PHW). A managed care 

organization, PHW monitored Employer on a monthly basis. (F.F. Nos. 2 and 3.) 

Although both PHW and Employer discussed billing and documentation with the 

employees, PHW did not have specific guidelines for Employer’s billing practices. 

(F.F. No. 4.) Additionally, even though PHW had a portal into which the person 

providing services had to enter all information regarding the services provided, the 

portal did not always work correctly. (F.F. Nos. 6 and 7.) Nonetheless, “PHW 

would go through consumer files which [were] red flagged and discuss with 

[E]mployer a plan of action relative to the employee who had been involved with 

the files[.]” (F.F. No. 5.) This review could lead to an employee’s discharge from 

employment. (Id.)

On February 22, 2019, Employer had a staff meeting at which time it 

discussed billing procedures. Guidelines included “nobody should be billing 

excessively” and if billing for greater than two hours, “they better have a really, 

really thorough note.” (F.F. No. 8.) Following an audit, PHW red-flagged 

Claimant’s files when she “billed for more hours than PHW wanted[.]” (F.F. No. 

10.) In addition, “[t]here was a lack of documentation of [C]laimant making monthly 

contacts with consumers.” (F.F. No. 9.) Consequently, four days after the staff 

meeting, Employer discharged Claimant for billing fraud and not complying with 

company policies and procedures. (F.F. No. 12.) The Indiana UC Service Center 

denied her application for unemployment compensation benefits pursuant to Section 

402(e) of the Law.

On appeal, the referee conducted a hearing at which Claimant appeared 

pro se and Employer’s owner, Casey Ball, appeared with counsel. The referee 

denied benefits, determining that Employer met its burden of establishing willful 
3

misconduct. Specifically, the referee credited the testimony of Ms. Ball that 

Employer and PHW repeatedly explained to all staff the billing procedures and the 

amount to be billed per consumer but that Claimant failed to input the appropriate 

documentation into the portal, failed to account for the services that she provided, 

and billed in excess of what was permissible. The Board reversed, resolving all 

conflicts in testimony in favor of Claimant. Employer’s petition for review 

followed.

Employer argues that the referee correctly determined that Claimant’s 

actions constituted willful misconduct and that Employer carried its burden of 

establishing that willful misconduct. Additionally, Employer maintains that the 

Board erred in disturbing the referee’s credibility determination and findings of fact, 

reversing the referee’s decision, and issuing its own decision. Employer’s 

arguments are without merit.

We turn first to the Board’s issuance of its own decision. Contrary to 

Employer’s suggestion, 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); 

Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010). 

The Board’s findings of fact are conclusive on appeal when the record, in its entirety, 

contains substantial evidence supporting those findings. Oliver, 5 A.3d at 438.

Additionally, although Employer challenged the legality of the Board’s issuance of 

findings of fact, Employer failed to make specific challenges to any of those 

findings. Accordingly, the findings are conclusive on appeal. Campbell v. 

Unemployment Comp. Bd. of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).

Where, as here, both parties submitted evidence, there was no need for 

the Board to specify why it deviated from the referee’s findings of fact and 
4

conclusions of law. Peak, 501 A.2d at 1386-87; Hasely v. Unemployment Comp. 

Bd. of Review, 553 A.2d 482, 487 (Pa. Cmwlth. 1989). Consequently, the fact that 

the referee personally observed the witnesses is of no moment. Finally, as long as 

there is substantial evidence for the Board’s findings, “[t]he 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). Here, the Board credited Claimant’s testimony and 

we cannot overturn that credibility determination on appeal. Fitzpatrick v. 

Unemployment Comp. Bd. of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). We 

are bound to view the evidence in the light most favorable to Claimant, as the party 

who prevailed before the Board, and give her 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). Mindful of the 

foregoing, we turn to the merits of the willful misconduct determination.

Section 402(e) of the Law 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). The term “willful misconduct” has 

been defined to include: (1) the wanton and willful disregard of the employer’s 

interests; (2) the deliberate violation of work rules; (3) the disregard of standards of 

behavior which an employer can rightfully expect of its employee; or (4) negligence 

which manifests culpability, wrongful intent, evil design, or intentional and 

substantial disregard for the employer’s interests or the employee’s duties and 

obligations. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957 

A.2d 786, 792 (Pa. Cmwlth. 2008). While we must defer to the Board’s fact finding 
5

regarding the claimant’s conduct, whether those actions constitute willful 

misconduct is a question of law over which we exercise plenary review. Frazier v. 

Unemployment Comp. Bd. of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).

Additionally, the employer bears the initial burden of proving that the 

claimant engaged in willful misconduct. Yost v. Unemployment Comp. Bd. of 

Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012). If the willful misconduct charge 

is based upon a violation of a work rule, the employer must prove the existence of 

the rule and its violation. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review, 

703 A.2d 452, 456 (Pa. 1997). The Court will examine whether the work rule is 

reasonable in light of all of the circumstances and, if so, whether claimant had good 

cause to violate the rule. Id. Reasonableness is determined by whether the 

employer’s application of the rule under the circumstances is fair, just and 

appropriate to pursue a legitimate interest. Id.

In concluding that Claimant’s actions did not constitute willful 

misconduct, the Board took into consideration the fact that Employer admitted that 

there were problems with PHW’s portal when employees attempted to input 

information and that PHW did not have any specific guidelines for how Employer 

was to bill.2 (Board’s Decision at 2-3.) In addition, the Board noted the lack of 

specificity of the guidelines discussed at the staff meeting.3 Considering the fact that 

the change in billing procedures occurred in January 2019, that “significant 

 

2

(April 25, 2019, Hearing, Notes of Testimony “N.T.” at 8 and 15; Reproduced Record “R.R.” 

at 71a and 78a.)

3 Employer references post-termination emails as support for the existence of specific policies 

and guidelines for billing. (Employer’s Brief at 14) (citing N.T. at 9-11; R.R. at 72a-74a and 

Employer’s Hearing Ex. No. 1 at 2-4; R.R. at 87a-89a). However, there is no indication that 

Employer conveyed such policies to Claimant while she remained an employee. Consequently, 

Employer failed to establish the existence of specific rules or guidelines in accordance with the 

relevant criteria. Caterpillar, Inc.
6

clarification about such procedures was ongoing to all staff through February 

[2019],” and that Employer discharged Claimant a mere four days after the staff 

meeting, the Board concluded that Employer did not establish willful misconduct.4 

(Id. at 3.) The Board rejected any suggestion that Claimant’s actions constituted 

fraudulent overbilling. Instead, it opined that “[a]t worst, [Claimant’s] conduct was 

more akin to negligence or poor work performance, neither of which is willful 

misconduct.” (Id.) Notably, incompetence, inexperience or inability do not 

constitute willful misconduct. Ungard v. Unemployment Comp. Bd. of Review, 442 

A.2d 16, 19 (Pa. Cmwlth. 1982).

Because we conclude that the Board did not err in determining that 

Employer failed to sustain its burden of establishing that Claimant’s actions 

constituted willful misconduct, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

 

4 Although the Board found that Claimant had warnings in 2017 for billing and in 2018 for 

answering emails, it concluded that they were relatively immaterial given the fact that they 

preceded the new billing procedures. (Board’s Decision at 3.) Indeed, remoteness is a factor in 

assessing willful misconduct. See Tundel v. Unemployment Comp. Bd. of Review, 404 A.2d 434, 

436 (Pa. Cmwlth. 1979) (the remoteness doctrine provides that “[a]n incident of willful misconduct 

cannot be so temporally remote from the ultimate dismissal and still be the basis for a denial of 

benefits”).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination, :

Petitioner :

:

 v. : No. 920 C.D. 2019

:

Unemployment Compensation Board :

of Review, :

Respondent :

O R D E R

AND NOW, this 9

th day of June, 2020, the order of the Unemployment 

Compensation Board of Review is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge