IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred Ricco, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 251 C.D. 2021

Respondent : Submitted: October 15, 2021

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: December 2, 2021

Alfred Ricco (Claimant) petitions this Court for review of the 

Unemployment Compensation (UC) Board of Review’s (UCBR) January 14, 2021

order affirming the Referee’s decision that denied him UC benefits under Section 

402(e) of the UC Law (Law).1 The sole issue before this Court is whether the UCBR 

erred by concluding that UPMC Presbyterian Shadyside (Employer) met its burden 

of proving that Claimant committed willful misconduct. After review, this Court 

affirms.

Claimant worked for Employer as a Senior Manager IT-DBA from

November 26, 2007 until February 21, 2020, when Employer terminated his 

employment. Employer had a policy that paid time off (PTO) earned by an employee 

vests after three years of employment. Thereafter, if an employee resigned but 

returned to work for Employer within one year, the employee would be entitled to 

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

802(e) (referring to willful misconduct).
2

his previously accrued PTO. If, however, the employee’s PTO had not vested before

he resigned, it was forfeited and, even if Employer rehired him within one year, his 

PTO would not be restored (Policy). See Certified Record (C.R.) at 97-98, 102.

2

 In 

addition, Employer’s Policy and Procedure Manual (Manual) specified that 

employee “[t]ime must be recorded accurately.” C.R. at 86. Further, the Code of 

Conduct portion of the Manual expressly prohibits employees from unethical 

behavior, including “[f]alsifying records, including . . . business-related 

documentation[.]” C.R. at 80-81. Claimant had access to and was familiar with 

these policies. See C.R. at 100-101, 111. 

In February 2019, Matt Dalessandro (Dalessandro),3an employee 

Claimant supervised, resigned. Pursuant to Employer’s Policy, because Dalessandro

had not yet worked for Employer for three years, the approximately five weeks of 

PTO he earned to that point had not vested, and he lost it. See C.R. at 78, 98. 

A short time thereafter (approximately March 2019), Dalessandro

expressed an interest in returning to work for Employer, and inquired of Claimant 

whether he would be entitled to, inter alia, any of his forfeited PTO. See C.R. at 16.

In approximately May 2019, Claimant asked his supervisor, Employer’s Data 

Services Director Cristin Sargo (Sargo), if Dalessandro could have any of his 

forfeited PTO if Employer rehired him, and Sargo referred him to Employer’s Lead 

Human Resources (HR) Consultant Jennifer MacEachern (MacEachern). See C.R. 

at 104-105, 109. MacEachern told Claimant that Employer could not reinstate

Dalessandro’s PTO. See C.R. at 98-99, 109. Dalessandro returned to work for 

Employer.

2 Claimant’s Reproduced Record is a copy of the Certified Record, thus, the citations 

therein are Certified Record citations. For clarity, this Court will similarly reference the record 

herein.

3 Although the Referee’s telephone hearing notes of testimony reflect that the employee’s 

name is Matt Elsandro, his name is Matt Dalessandro. See C.R. at 78.
3

In February 2020, MacEachern learned that Claimant had given his 

staff PTO over the holidays. See C.R. at 98, 108. While investigating that incident, 

MacEachern became aware that, despite Employer’s Policy, Claimant had 

authorized Dalessandro to take approximately 12 days of unearned PTO. See C.R. 

at 78, 97, 100. On February 11, 2020, MacEachern and Sargo met with Claimant to 

discuss Claimant’s actions. See C.R. at 98-99. During that meeting, Claimant 

admitted to giving Dalessandro PTO (on May 30, July 13, July 15-19, August 8, and 

December 23-24 and 26-27, 2019), and allowing Dalessandro’s time record in 

Employer’s automated time and attendance system (Kronos) to reflect that 

Dalessandro worked those days. Claimant declared that he had Sargo’s prior 

approval to do so. See C.R. at 78, 98, 100. Sargo denied giving Claimant any such 

approval. See C.R. at 98. 

At MacEachern’s and Sargo’s request, by February 11, 2020 email, 

Claimant outlined his PTO practices. See C.R. at 77-78. Therein, Claimant 

explained that Dalessandro had been an exceptional employee, and that he allowed 

him to take unearned PTO on the subject dates, but added that Dalessandro had 

worked some extra hours on evenings and weekends. See C.R. at 78, 110.

By February 21, 2020 letter, Sargo notified Claimant that Employer 

was terminating his employment, effective that day, on the basis that he “encouraged 

[Dalessandro] to falsify [his] time card, which is considered theft of time[,]” “[he] 

showed poor judgment in [his] decision making [and], as a result, [Employer had] 

diminished trust in [him] as a leader.” C.R. at 75; see also C.R. at 100. 

Claimant applied for UC benefits on February 23, 2020. On March 16, 

2020, the Altoona UC Service Center determined that Claimant was ineligible for 

UC benefits pursuant to Section 402(e) of the Law. Claimant appealed and a Referee 

held a hearing on September 15, 2020. On September 23, 2020, the Referee affirmed 

the UC Service Center’s determination. Claimant appealed to the UCBR. On 
4

January 14, 2021, the UCBR affirmed the Referee’s decision.4 Claimant appealed 

to this Court.5

Initially, 

Section 402(e) of the Law provides that an employee is 

ineligible for [UC] benefits when his unemployment is due 

to discharge from work for willful misconduct connected 

to his work. The employer bears the burden of proving 

willful misconduct in a[] [UC] case. Willful misconduct 

has been defined as (1) an act of wanton or willful 

disregard of the employer’s interest; (2) a deliberate 

violation of the employer’s rules; (3) a disregard of 

standards of behavior which the employer has a right to 

expect of an employee; or (4) negligence indicating an 

intentional disregard of the employer’s interest or a 

disregard of the employee’s duties and obligations to the 

employer.

Sipps v. Unemployment Comp. Bd. of Rev., 181 A.3d 479, 481 (Pa. Cmwlth. 2018)

(emphasis omitted) (quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Rev., 

755 A.2d 744, 747 n.4 (Pa. Cmwlth. 2000) (citation omitted)). 

Where willful misconduct is based upon the violation of a 

work rule, the employer must establish the existence of the 

rule [and] its reasonableness, and that the employee was 

aware of the rule. Once employer meets this burden, the 

burden shifts to the claimant to prove that the rule was 

unreasonable or that he had good cause for violating the 

rule.

4 On January 29, 2021, Claimant sought reconsideration of the UCBR’s decision, which 

the UCBR denied on February 12, 2021.

5

“‘Our scope of review is limited to determining whether constitutional rights were 

violated, whether an error of law was committed, or whether the findings of fact were unsupported 

by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev[.], 83 A.3d 484, 486 n.2 (Pa. 

Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth. 

2018).
5

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Rev., 26 

A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)). “A claimant has good 

cause if his . . . actions are justifiable and reasonable under the circumstances.” 

Grand Sport Auto Body v. Unemployment Comp. Bd. of Rev., 55 A.3d 186, 190 (Pa. 

Cmwlth. 2012) (citation omitted) (quoting Docherty v. Unemployment Comp. Bd. of 

Rev., 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006)). Ultimately, “[t]he question of 

whether conduct rises to the level of willful misconduct is a question of law to be 

determined by this Court.” Scott v. Unemployment Comp. Bd. of Rev., 105 A.3d 

839, 844 (Pa. Cmwlth. 2014).

Claimant argues that the UCBR erred by concluding that Employer met 

its burden of proving that Claimant committed willful misconduct. 

At the Referee hearing, Sargo confirmed that Claimant mentioned 

Dalessandro’s interest in returning to Employer and asked her if Dalessandro could 

get his PTO reinstated, and she directed Claimant to ask HR. See C.R. at 104-105. 

Sargo declared that was the only conversation she had with Claimant on that subject, 

and she never authorized Claimant to let Dalessandro take unearned PTO.6 See C.R. 

at 104. Sargo further pronounced that she has never given Claimant any type of 

permission to handle PTO internally within their department without HR’s approval. 

See C.R. at 105. 

Sargo explained that employees or their managers post their PTO on 

the calendar and, every two weeks, before she approves the time cards and signs off 

for payroll processing, she checks the PTO calendar to make sure those dates were 

reflected in Kronos. See C.R. at 105. Sargo testified that Dalessandro’s PTO subject 

6 Sargo claimed that the only option she could have authorized for Dalessandro within the 

department would have been a flexible work schedule (i.e., working a weekend day in order to 

have a week day off). See C.R. at 105. 
6

dates had been removed from the calendar before she undertook her sign-off process 

for the relevant weeks, so she was not aware that he took PTO. See C.R. at 105. 

Sargo described seeing an email Claimant authored directing that Dalessandro’s 

PTO be removed from the PTO calendar. See C.R. at 105. 

Claimant testified that, when he discussed Dalessandro’s PTO with 

Sargo, she told him that if HR did not approve the request, she and Claimant could 

make it work internally. See C.R. at 108. Therefore, Claimant claims that he did 

what he had approval to do. See C.R. at 108, 113. Claimant admitted that he allowed 

Dalessandro’s schedule in Kronos to reflect that Dalessandro worked on the days for 

which he was given PTO. See C.R. at 110-111, 113. However, Claimant declared 

that he had been a team leader for nearly 13 years, and would not have allowed 

Dalessandro to take unearned PTO without approval. See C.R. at 108, 111-112. 

Claimant further clarified that the actual PTO he permitted Dalessandro 

to take was closer to 8 days, and not the 12 days Employer claims, because 

Dalessandro had worked extra hours. See C.R. at 110. Claimant asserted that his 

actions were “not harmful in any way,” C.R. at 108, because the value of bringing 

someone with Dalessandro’s experience back to work for Employer (as opposed to 

hiring and training someone new) was greater than the “pretty small” (i.e., $3,000.00 

to $4,000.00) dollar amount Employer lost by giving Dalessandro the PTO. C.R. at 

110; see also C.R. at 113.

Based upon the evidence, the Referee denied Claimant UC benefits 

pursuant to Section 402(e) of the Law, stating: Employer established that it had a 

PTO policy in place; Claimant was aware of that policy; and, based upon Employer’s 

witnesses’ credible testimony that Claimant allowed Dalessandro to use unearned 

PTO without authorization, Claimant’s conduct violated that Policy. See Referee 

Dec. at 3; C.R. at 118. 
7

This Court has explained: “[T]he [UCBR] is the ultimate fact-finder in 

[UC] matters . . . . Where substantial evidence supports the [UCBR’s] findings, they 

are conclusive on appeal.” Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v. 

Unemployment Comp. Bd. of Rev., 949 A.2d 338, 342 (Pa. Cmwlth. 2008) (citations 

omitted)). “Substantial evidence is relevant evidence upon which a reasonable mind 

could base a conclusion.” Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment 

Comp. Bd. of Rev., 739 A.2d 616, 618 (Pa. Cmwlth. 1999)). “The [UCBR] is also 

empowered to resolve conflicts in the evidence.” Serrano v. Unemployment Comp. 

Bd. of Rev., 149 A.3d 435, 439 (Pa. Cmwlth. 2016). Therefore, “‘[q]uestions of 

credibility and the resolution of evidentiary conflicts are within the sound discretion 

of the [UCBR], and are not subject to re-evaluation on judicial review.’” Id. (quoting 

Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1388 (Pa. 1985)).

Here, the UCBR adopted the Referee’s factual findings7and 

conclusions of law and affirmed the Referee’s decision, reasoning:

The [UCBR] resolves the conflicts in the testimony, in 

relevant part, in favor of [Employer] and finds its 

witnesses’ testimony to be credible.

. . . . 

[C]laimant’s supervisor credibly testified that [Claimant]

did not have permission to grant [Dalessandro] unearned 

PTO time. Although [Claimant] indicated that he wanted 

to allow this individual additional PTO time because he 

was a good employee, this is not good cause for violating 

[Employer’s] [P]olicy. Further, directing an employee to

falsify [his] timesheet(s) is behavior which falls below the 

standard of conduct that an employer has [a] right to 

expect.

UCBR Op. at 1; C.R. at 139 (quotation marks omitted). 

7 The UCBR amended Referee Finding of Fact 2 “to reflect that [C]laimant was aware of 

[E]mployer’s PTO vesting policy.” UCBR Order at 1; C.R. at 139.
8

Based upon this Court’s review of the record, there was substantial 

evidence to support the UCBR’s findings and conclusions. Thus, this Court holds 

that the UCBR properly concluded Claimant committed willful misconduct without 

good cause for doing so. Accordingly, this Court discerns no error or abuse of 

discretion by the UCBR in denying Claimant UC benefits under Section 402(e) of 

the Law.

For all of the above reasons, the UCBR’s order is affirmed.

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfred Ricco, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 251 C.D. 2021

Respondent :

O R D E R

AND NOW, this 2

nd day of December, 2021, the Unemployment 

Compensation Board of Review’s January 14, 2021 order is affirmed.

_________________________________

ANNE E. COVEY, Judge