IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ann L. Craig, : : No. 1780 C.D. 2015

Petitioner : Submitted: March 18, 2016

:

v. :

: Unemployment Compensation : Board of Review, :

: Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE FRIEDMAN FILED: May 20, 2016

Ann L. Craig (Claimant) petitions for review of the August 3, 2015 , order

of the Unemployment Compensation Board of Review (UCBR) affirming the decision

of a referee to deny Claimant unemployment compensation (UC) benefits. The UCBR

determined that Claimant was inelig ible for UC benefits because s he was discharged

from work for willful misconduct under section 402(e) of the Unemployment

Compensation Law (Law). 1 We affirm

.

1 Act of December 5, 1936, Sec ond Ex. Sess

. , P.L. (1937) 2897, as amended , 43 P.S. § 802(e). Section 402(e) of the Law provides that “[a]n employe shall be ineligible fo r compensation for any

week . . . [i]n which [her] unemp loyment is due to [her] discharge . . . from work for willful

misconduct connected with [her] work.” 43 P.S. § 802(e).2

Claimant worked full

- time as a staff accountant for the Coalition to End

Childhood Lead Poisoni ng (Employer) from November 10 , 2008, through March 4,

2015. (Findings of Fact, No. 1.) Employer’s financial internal control s policy ( Controls

Policy) states that all disbursements must be made by check. ( Id. , No. 2.) Claimant

signed an acknowledgment of Employer’s Controls P olicy . ( Id. , No. 3 ; N.T., 5/27/15, at

7 ; Employer’s Ex

. 5

. )

In January 2015, a check that Employer had mailed to its workers’

compensation (WC) insurance carrier was returned to Employer due to an incorrect

address. ( Findings of Fact , No. 4.) Claimant then paid the WC insurance carrier by a

bank transfer over the telephone . ( Id. , No. 5.) Claimant did not discuss this matter with

Employer before making the bank transfer . ( Id. , No. 6.) Emplo yer confronted Claimant

after Employer received a cancellation notice from its WC insurance carrier , and

Claimant admitted that she violated Employer’s Controls Policy . ( Id. , No s

. 7

- 8.) On

January 21, 2015, Ruth Ann Norton, Employer’s president and chief executive officer,

informed Claimant that her disbursement by telephone was a serious infraction to which

Employer was considering its response . ( Id. , No. 9.) On March 4, 2015, Employer

discharged Claimant for making a disbursement by tele phone. ( Id. , No. 10.)

Claimant filed a claim for UC benefits, which the local service center

granted. Employer appealed to a referee, who held a telephone hearing on May 27,

2015. Claimant testified that when she recei ved the returned check in January 2015, she

made the disbursement by telephone. ( N.T., 5/27/1 5

, at 41. ) Claimant testified that she

did not believe she was violating Employer’s Controls Policy at the time she made the

disbursement . ( Id. at 4 4 .) Claiman t testified that she did not consult anyone before3

making the disbursement by telephone but informed Victor Arthur, Employer’s

comptroller, after the fact . ( Id. at 46.) Claimant testified that she did not remember

why she did not consult a nyone before making the disbursement . ( Id. at 55.)

Norton testified on behalf of Employer. Norton testified that Employer’s

Controls Policy requires that disbursement s be made by check . ( Id. at 20 ; Employer’s

Ex. 4 .) Norton testified that the purpose of t his requirement is to enable Employer to

track disbursement s and prevent unauthorized transactions. (N.T., 5/27/15, at 17.)

Norton testified that Employer does not permit its employees to make disbursement s by

telephone. ( Id. at 24

- 25 .) Norton also testified that Claimant knew that Employer ’s

Controls Policy prohibited disbursement s by telephone

. ( I d. at 23

- 24

. ) Norton testified

that when she met with Claimant to discuss the disbursement , Claimant admitted that

her conduct violated Employer’s Control s Policy. ( Id. at 14

- 15.) Finally, Norton

testified that she did not immediately discharge Claimant because she wanted to gather

information about Claimant’s violation and discuss the matter with Employer’s board of

directors and financial office rs . ( Id. at 18

- 19.)

Thomas Bellew also testified on Employer’s behalf. Bellew was

Employer’s chief financial officer from April 2014 through March 2015. ( Id. at 30.)

Bellew testified that Claimant trained him on Employer’s Controls Policy when he was

first hired . ( Id. at 30

- 31.) Bellew testified that Claimant’s disbursement by telephone

constituted an unauthorized bank transfer . ( Id. at 32.) Bellew testified that in order to

make a bank transfer, the staff accountant must complete a tr ansmittal approval form.

( Id. ) Bellew testified that Employer does not permit bank transfers by telephone. ( Id. at4

36.) Bellew testified that “having a signed check is not the same as having approval to

make a bank transfer.” ( Id. )

Arthur also tes tified on Employer’s behalf

. Arthur testified that Employer

first learned of the disbursement at issue when he reviewed a cancellation notice from

Employer’s WC insurance carrier . ( Id. at 49. ) Arthur testified that he asked Claimant

about the disbursement and Claimant acknowledged that she made the disbursement by

telephone . ( Id. )

The refe ree resolved all conflicts in the testimony in Employer’s favor

.
(Ref. ’s Decision at 2.) The referee determined that Employer’s Controls Policy

prohibi ted disbursement s by telephone, Claimant was aware of the Controls Policy , and

Claimant breached the Controls Policy by making a disbursement by telephone

. ( Id. )

The referee found that Claimant did not inform Employer that she made a disbursement

by tele phone until after Employer confronted her . ( Id. ) Additionally, the referee

credited Norton’s testimony that the delay in Claimant’s discharge was due to

Employer’s investigation of Claimant’s disbursement by telephone . ( Id. ) Claimant

appealed to the UCBR, which adopted the referee’s findings of fact and conclusions of

law and affirmed. Claimant no w petitions this court for review of that decision. 2

First, Claimant argues that the UCBR erred in determining that she

engaged i n willful misconduct . We disagree.

2 Our 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 su bstantial evidence.
Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.5

“Willful misconduct” is defined as: (1) a wanton and willful disregard of

the employer ’ s interests; (2) a deliberate violation of the employer ’ s rules or policies ;

(3) a disregard of the standards of behavior that an em ployer rightfully can expect from

its employees; or (4) negligence that manifests culpability, wrongful intent, evil design,

or an intentional and substantial disregard of the employe r’ s interests or the employee ’ s

duties and obligations. Oliver v. Unempl oyment Compensation Board of Review , 5

A.3d 432, 438 (Pa. Cmwlth . 2010) ( en banc ). When a claimant is discharged for

violating the employer’s policy

, the employer bears the burden of proving the existence

of the policy

, that the policy was reasonable

, and that the claimant was aware of and

violated the policy. Rothstein v. Unemployment Compensation Board of Review , 114

A.3d 6, 9 (Pa. Cmwlth. 2015). If the employer satisfies its burden , the burden shifts to

the claimant to establish that she had good cause for violating the employer’s policy

. Id.

“Good cause is demonstrated if the claimant’s conduct was justified or reasonable under

the circumstances .” Id.

Here, Employer’s Controls Policy states that disbursement s must be made

by check. The UCBR credited Norton ’s and Bellew’s testimony that disbursement s by

telephone are not permitted under the specific language of the Controls Policy.

Claimant did not contradict Norton ’s and Bellew’s testimony that Employer prohibits

disburs ement s by telephone because they would jeopardize the security and

accountability of Employer’s finances

. Based on Claimant’s signed acknowledgement

and Norton ’s and Bellew’s credited testimony, the U CB R found that Claimant was

aware of and had trained other employees in the Controls Policy. Finally, Claimant did

not contradict the credited testimony of Employer’s witnesses that Claimant admitted6

that her disbursement by telephone violated the Controls P olicy . Therefore, Employer

met its burden

.

The burden then shifted to Claimant to establish good cause for violating

Employer’s Controls Policy

. Claimant testified that she made the disbursement by

tele phone in order to prevent Employer’s WC insurance coverage from being cancelled

.
However, Claimant ’s conduct was not reasonable under the circumstances because she

admitted that she failed to consult a supervisor before she made a disbursement that

violated Employer’s Controls Policy

. At the hearing , Cl aimant could not explain why

she failed to take these precautions. Therefore, Claimant failed to establish good cause

for violating Employer’s Controls Policy.

Second, Claimant argues that the remoteness doctrine precludes a finding

of willful misconduct because of the delay in her discharge from employment . We

disagree.

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.” Tundel v. Unemployment Compensation Board of Review , 404 A.2d

434, 436 (Pa. Cmwlth. 1979). Ho wever, the remoteness doctrine does not apply “ where

the record establishes an explanation for the delay

. . . and there is no action on the part

of the employer indicating that it condoned the claimant ’ s conduct .” Raimondi v.

Unemployment Compensation Bo ard of Review , 863 A.2d 1242, 1247 (Pa. Cmwlth.

2004).7

Here, Claimant made a disbursement by tele phone in January 2015 and was

discharged for that conduct on March 4, 2015. The UCBR credited Norton’s testimony

that the delay was due to Employer’s invest igation into Claimant’s conduct. Norton

explained that she needed to gather information about Claimant’s violation and discuss

the matter with Employer’s board of directors and financial officers

. Claimant argues

that the referee and UCBR erred in credit ing Norton’s testimony. However, the UCBR

is the ultimate factfinder and arbiter of witness credibility. Procito v. Unemployment

Compensation Board of Review , 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008) ( en banc ).

Additionally, Cl aimant does not point to any instance where Employer indicated that it

condoned Claimant’s conduct

. T herefore, the remoteness doctrine is inapplicable and

did not preclude the UCBR’s finding of willful misconduct.

Accordingly, we affirm.

________ ___________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ann L. Craig, : : No. 1780 C.D. 2015

Petitioner :

:

v. :

: Unemployment Compensation : Board of Review, :

: Respondent :

O R D E R

AND NOW, this 20 th day of May , 201 6

, we hereby affirm the August 3,

2015, order of the Unemployment Compensation Board of Review

.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge