IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan E. Siegfried, :

Petitioner :

: No. 1632 C.D. 2013

v. :

: Submitted: March 7, 2014

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: August 13, 2014

Susan E. Siegfried (Claimant) petitions for review of the August 28, 

2013 order of the Unemployment Compensation Board of Review (Board), which 

affirmed a referee’s determination that Claimant is ineligible for benefits pursuant to 

section 402(e) of the Unemployment Compensation Law (Law).1 

Claimant worked as a full-time patrol officer with the Palmer Township 

Police Department (Employer) from 1992 to November 23, 2012. While off-duty on 

November 24, 2012, Claimant was in a motor vehicle accident, driving her vehicle

into a tree. Claimant was transported to a hospital and a blood test revealed that her 

 

1 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 shall be ineligible for compensation 

for any week in which his unemployment is due to his discharge or temporary suspension from 

work for willful misconduct connected with her work. 43 P.S. §802(e). 
2

blood alcohol level (BAC) was .32%. Claimant was charged with several 

misdemeanors, including driving under the influence (DUI), and she entered into the 

Accelerated Rehabilitative Disposition (ARD) program, which permits expungement 

of her criminal record upon successful completion of the program.

2

 As a result of the 

charges, Claimant’s driver’s license was suspended for sixty days. (Findings of Fact 

Nos. 1-2, 4-7.) 

Sergeant Michael Vangelo investigated the incident and subsequently 

authored an investigative report concluding that Claimant violated multiple Employer 

Regulations as well as what is commonly known as the Police Tenure Act.3 (Record 

Item #8, Ex. 3.) On March 25, 2013, Christopher Christman, Manager of Palmer 

Township, issued Claimant a termination letter. In this letter, Manager Christman 

stated that Claimant’s conduct on November 24, 2012, including her arrest for DUI, 

violated Employer’s Regulations Nos. 83, 85, and 106,

4

and section 2 of the Police 

Tenure Act, 53 P.S. §812.

5

 (Record Item #8, Ex. 7.) 

 

2

See Pa.R.Crim.P. 320 (Expungement Upon Successful Completion of ARD Program).

3 Act of June 15, 1951, P.L. 586, No. 144, as amended, 53 P.S. §§811—816.

4

In their entirety, these Regulations state: 

83. [Employer] will not interfere in the officers [sic] personal lives. 

However, if his actions would bring disgrace to the department, 

disciplinary action may be taken against him. An officers [sic] morals 

and character should be beyond reproach at all times, on or off duty.

* * *

85. No officer will indulge in intoxicants while on duty, or at any 

time the uniform or part of the uniform is worn. No member of the 

department will visit a barroom while in uniform except in the line of 

duty. No officer will consume alcoholic beverages four hours prior 

(Footnote continued on next page...)
3

 

(continued...)

to, or report for duty while intoxicated or have an odor of alcoholic 

beverage on his breath. Members of the department who may be 

assigned to duty in civilian clothes will refrain from drinking 

alcoholic beverages except in cases of absolute necessity in collecting 

evidence or information and in no case will he drink enough to 

become intoxicated. If at any time an officer drinks alcohol 

beverages to excess and causes embarrassment or brings disgrace or 

criticism on the department, whether on duty or off, disciplinary 

action may be taken. 

* * *

106. No officer shall fail to possess and maintain a current and valid 

Pennsylvania drivers [sic] license. Officers who[se] license is [sic]

suspended may be subject to suspension without pay for the specified 

time or dismissal. 

(Record Item #8, Ex. 4.) 

At the end of the Regulations is a disciplinary matrix that lists the discipline for a first 

offense violation of Regulation 85 as a reprimand to thirty-day suspension, and for a first offense 

violation of Regulation 106 as a thirty to ninety day suspension. Id. Regulation 83 is not cataloged 

within the matrix, which states that those Regulations “not listed are informational or contain 

disciplinary directives.” Id. 

5

Section 2 of the Police Tenure Act provides for the termination of certain, full-time police 

officers and states as follows:

No person employed as a regular full time police officer in any police 

department of any township of the second class, or any borough or 

township of the first class within the scope of this act, with the 

exception of policemen appointed for a probationary period of one 

year or less, shall be suspended, removed or reduced in rank except 

for the following reasons: (1) physical or mental disability affecting 

his ability to continue in service, in which case the person shall 

receive an honorable discharge from service; (2) neglect or violation 

of any official duty; (3) violating of any law which provides that such 

violation constitutes a misdemeanor or felony; (4) inefficiency, 

neglect, intemperance, disobedience of orders, or conduct 

(Footnote continued on next page...)
4

Following her termination, Claimant applied for unemployment 

compensation benefits. On April 22, 2013, the local service center determined that 

Claimant was ineligible for benefits under section 402(e) of the Law. Claimant 

appealed, and the referee convened a hearing.

After receiving evidence, and by decision and order dated June 14, 2013, 

the referee found that Claimant’s job was subject to the Police Tenure Act, which 

states that an officer may be terminated from employment when the officer violates

any law constituting a misdemeanor or felony or engages in conduct unbecoming an 

officer. The referee further found that on November 24, 2012, Claimant was in a 

motor vehicle accident when her vehicle collided with a tree; Claimant’s BAC was 

.32%; Claimant was charged with several misdemeanors, including DUI; Claimant’s

driver’s license was suspended for sixty days as a result of the charges; and Claimant

entered into the ARD program and will have the DUI charges expunged from her 

record when she successfully completes that program. (Findings of Fact Nos. 2, 4-7, 

9.)

The referee noted that “the above findings represent the competent 

evidence and credibility determinations” that she made as part of her decision.

(Referee’s decision at 2.) Based on these findings, the referee concluded that 

 

(continued...)

unbecoming an officer; (5) intoxication while on duty. A person so 

employed shall not be removed for religious, racial or political 

reasons. A written statement of any charges made against any person 

so employed shall be furnished to such person within five days after 

the same are filed.

53 P.S. §812.
5

Claimant engaged in willful misconduct under section 402(e) of the Law, thus 

rendering her ineligible for benefits. Specifically, the referee determined that 

Claimant’s conduct violated Employer’s work rules, Regulation 106 and the Police 

Tenure Act.6 

Thereafter, Claimant appealed to the Board. On August 28, 2013, the 

Board affirmed, adopting and incorporating the referee’s findings and conclusions.7 

(Board’s decision at 1.)

On appeal to this Court,

8 Claimant asserts that the Board erred in relying 

on the Police Tenure Act to conclude that she engaged in willful misconduct. 

Claimant notes that her DUI arrest and charge may be expunged upon successful 

completion of the ARD program and contends that her actions do not violate the 

Police Tenure Act. Claimant also argues that the evidence failed to establish a 

connection between her off-duty misconduct and her job performance. 

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

benefits where the employee is discharged “for willful misconduct connected with 

[her] work.” 43 P.S. §802(e). Although the Law does not define the term “willful 

misconduct,” our courts have construed it as including: (1) the wanton or willful 

 

6

The referee did not rule on Claimant’s purported violations of Regulations 83 and 85 or 

determine whether such violations could serve as an independent basis upon which to conclude that 

Claimant engaged in willful misconduct. 

7

In unemployment cases, the Board is the ultimate fact-finder, empowered to make all 

determinations as to witness credibility and evidentiary weight. Peak v. Unemployment 

Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985). 

8 Our scope of review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law, and whether findings of fact are supported 

by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
6

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

rules; (3) the disregard of standards of behavior which an employer can rightfully 

expect from 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. Guthrie v. Unemployment Compensation 

Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).9 

This Court has applied section 402(e) of the Law “to off-premises 

conduct to hold that claimants were ineligible for benefits.” Maskerines v. 

Unemployment Compensation Board of Review, 13 A.3d 553, 557 & n.8 (Pa. 

Cmwlth. 2011) (collecting cases). “Where an employer seeks to deny a discharged 

employee unemployment compensation benefits for a work rule violation pursuant to 

[s]ection 402(e), the employer must prove only that the work rule existed and that the 

employee violated it.” Id. at 557. If an employer meets this burden, the employer is 

not required to demonstrate that the employee’s off-duty conduct extended to her job 

performance. Id.

Section 2 of the Police Tenure Act vests a full-time police officer of any 

township of the second class, or any township or borough of the first class having a 

police force of less than three members, with a due process right to continued 

employment. 53 P.S. §812; see section 1 of the Police Tenure Act, 53 P.S. §811; see 

generally George v. Moore, 147 A.2d 148 (Pa. 1959); Pavonarius v. City of 

Allentown, 629 A.2d 204 (Pa. Cmwlth. 1993). Correspondingly, section 2 of the 

Police Tenure Act sets forth the only circumstances under which a full-time police 

 

9

The burden of proving willful misconduct rests with the employer. Guthrie, 738 A.2d at 

521. Whether an employee’s conduct constitutes willful misconduct is a question of law subject to 

this Court’s review. Id.
7

officer of a township such as Palmer Township may be removed from office. Upper 

Makefield Township v. Pennsylvania Labor Relations Board, 753 A.2d 803, 807 (Pa. 

2000). As a matter of law, the Police Tenure Act is incorporated into Claimant’s 

employment contract with Employer and supplies implied terms and bases for 

termination apart from those detailed in the Regulations. See DePaul v. Kauffman, 

272 A.2d 500, 506 (Pa. 1971) (“[T]he laws in force when a contract is entered into 

become part of the obligation of contract with the same effect as if expressly 

incorporated in its terms.”). Cf. Tegzes v. Bristol Township, 472 A.2d 1386, 1388-89

(Pa. 1984). Accordingly, section 2 of the Police Tenure Act constitutes a work rule 

of Employer. 

Here, Claimant was arrested and charged with DUI, her BAC was .32%, 

and she entered into an ARD program. Claimant’s conduct in committing a DUI 

contravened section 2 of the Police Tenure Act, which, among other things, permits 

dismissal of a police officer where the officer “violates” any law that is graded as a 

misdemeanor. 53 P.S. §812. Although Claimant relies on the fact that her arrest and 

charge for DUI may be expunged upon successful completion of the ARD program, 

in Davis v. Civil Service Commission of the City of Philadelphia, 820 A.2d 874, 877-

78 (Pa. Cmwlth. 2003), this Court concluded that an ARD is irrelevant to employee 

discipline because the conduct that resulted in the dismissal, as opposed to the 

outcome of the criminal charges, is what determines whether there is just cause for 

the dismissal. Id. Additionally, under Pennsylvania law, the “statutory requirements 

for participation in ARD imply that a defendant who accepts ARD has indeed 

committed a DUI offense, i.e., has violated [s]ection 3802 [of the Vehicle Code].” 
8

Whalen v. Department of Transportation, Bureau of Driver Licensing, 32 A.3d 677, 

684-85 (Pa. 2011).

10

 

For these reasons, we must conclude that the Board properly determined 

that Claimant violated Employer’s work rule, section 2 of the Police Tenure Act, 

when she committed an off-duty DUI. Consequently, Employer need not 

demonstrate that Claimant’s off-duty misconduct extended to her performance on the 

job. Maskerines, 13 A.3d at 557 (holding that, because the claimant was discharged 

for a work rule violation under section 402(e) of the Law, the employer was not 

required to show that the claimant’s possession of marijuana off-premises directly 

affected his job performance); see Derry v. Unemployment Compensation Board of 

Review, 693 A.2d 622, 624-25 (Pa. Cmwlth. 1997) (holding that the claimant’s offduty conduct violated the employer’s reasonable work rule and rendered him 

ineligible for benefits under section 402(e) of the Law).

11

Claimant also asserts that the evidence establishes that Employer did not 

discharge her for DUI, but, instead, terminated her employment on the basis of 

gender and disability discrimination. While Claimant adduced some evidence to this 

 

10 Further, an ARD is statutorily defined as a “prior offense” for purposes of the ignition 

interlock statute, Whalen, 32 A.3d at 685, and as a “conviction” for sentencing purposes on 

subsequent DUIs. Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa. Super. 2007). 

11 Claimant further asserts that Employer violated its own progressive disciplinary policy 

under the Regulations. However, as previously noted, the Police Tenure Act is incorporated into 

Claimant’s employment contract with Employer and supplies implied terms and bases for 

termination in addition to those detailed in the Regulations. “[A] claimant who has been discharged 

for multiple reasons is disqualified from receiving benefits even if only one of those reasons 

amounts to willful misconduct.” Glenn v. Unemployment Compensation Board of Review, 928 

A.2d 1169, 1172 (Pa. Cmwlth. 2007). Having concluded that the evidence supports the Board’s 

determination that Claimant’s conduct amounted to willful misconduct under the Police Tenure Act, 

this Court need not consider whether Employer properly terminated Claimant per its Regulations. 

See id.
9

effect, the Board did not base its findings on that evidence. In unemployment cases, 

the Board is the ultimate fact-finder, empowered to make all determinations as to 

witness credibility and evidentiary weight. Peak v. Unemployment Compensation 

Board of Review, 501 A.2d 1382, 1383 (Pa. 1985). “It is irrelevant whether the 

record contains evidence to support findings other than those made by the fact-finder; 

the critical inquiry is whether there is evidence to support the findings actually 

made.” Ductmate Industries, Inc., v. Unemployment Compensation Board of Review, 

949 A.2d 338, 342 (Pa. Cmwlth. 2008). 

Here, it was within the exclusive province of the Board, as fact-finder, to 

reject Claimant’s testimony regarding alleged discrimination in favor of finding that 

Employer discharged her for willful misconduct. Because Claimant’s assertions in 

this regard essentially challenge the Board’s credibility and weight determinations, 

and substantial evidence supports the Board’s necessary findings, Claimant’s 

arguments necessarily fail. Peak, 501 A.2d at 1383.12 

Accordingly, we affirm. 

________________________________

PATRICIA A. McCULLOUGH, Judge

 

12 Finally, Claimant contends that she made an unintentional mistake and that the evidence 

does not support a finding that her conduct was intentional or deliberate. While mere negligence is 

insufficient to prove willful misconduct, Navickas v. Unemployment Compensation Review Board, 

787 A.2d 284, 289-90 (Pa. 2001), Claimant does not argue that she became intoxicated 

involuntarily, and this Court has previously held “that an employee must bear the responsibility for 

the consequences of his drinking.” Morrell v. Unemployment Compensation Board of Review, 485 

A.2d 1214, 1216 (Pa. Cmwlth. 1984). Accord Jamison v. Unemployment Compensation Board of 

Review, 602 A.2d 420, 422 (Pa. Cmwlth. 1992).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Susan E. Siegfried, :

Petitioner :

: No. 1632 C.D. 2013

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 13th day of August, 2014, the August 28, 2013 order 

of the Unemployment Compensation Board of Review is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge