IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shanyong G. Wu, :

Petitioner :

:

v. : No. 729 C.D. 2017

: SUBMITTED: November 3, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge 

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE OLER, JR. FILED: January 5, 2018

Shanyong G. Wu (Claimant), pro se, petitions for review of the May 4, 

2017, order of the Unemployment Compensation Board of Review (UCBR), which 

affirmed the decision of an Unemployment Compensation Referee (Referee) finding 

Claimant ineligible for Unemployment Compensation (UC) benefits and subject to 

penalties pursuant to Sections 402(e), 804(a), 801(b), and 801(c) of the 

Unemployment Compensation Law (Law).1 We affirm.

 

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

802(e), 874(a), 871(b), and 871(c). 
2

Claimant worked part-time as a table games dealer for Mount Airy 

Casino Resort (Employer) from October 14, 2013 until his suspension on July 19, 

2014 and ultimate dismissal on July 20, 2014. (Referee’s F.F. Nos. 1, 17-18.)

Employer is a resort casino that is licensed and regulated by the 

Pennsylvania Gaming Control Board (Gaming Board). Employer has an employee 

handbook that contains Employer’s code of conduct (Code), which prohibits 

employees from leaving their assigned work area, leaving the employer’s property, 

or taking breaks without a supervisor’s authorization. The Code provides for 

progressive discipline, up to and including immediate termination, for inappropriate 

behavior or actions. Claimant signed an acknowledgment of receipt of the employee 

handbook on October 14, 2013. (Referee’s F.F. Nos. 2, 6-9.) 

Claimant was responsible for the protection and control of the table 

games and was required to know the local gaming laws and regulations along with 

Employer’s controls, policies, and procedures. Claimant signed, upon hire, an 

acknowledgment of receipt of Employer’s job description for a table game dealer. 

(Id., Nos. 3-5.)

On January 6, 2014, Employer issued a written counseling to Claimant 

related to his work performance. On February 17, 2014, Employer issued a final 

written warning to Claimant related to Claimant’s leaving his assigned table game 

while a game was in progress and the money was unprotected. On February 21, 

2014, Employer issued a written counseling and a written warning to Claimant 

regarding his work performance. (Id., Nos. 10-12.)
3

On April 9, 2014, Employer issued a written warning to Claimant 

regarding his improperly shuffling cards without a supervisor’s approval on March 

14, 2014. Also on April 9, 2014, Employer issued a final written warning to 

Claimant regarding several errors he made while dealing a blackjack game, 

including “three occasions [where] he paid a bet that didn’t have cards” on March 

19, 2014. (Notes of Testimony (N.T.), 1/23/17, at 21.) On May 8, 2014, Employer 

issued Claimant a written warning and a three-day suspension for violating 

Employer’s policies and the Gaming Board rules when he allowed a player to “play 

three hands of blackjack” when Employer’s rules are to only allow players to play 

two hands of blackjack. (Referee’s F.F. Nos. 13-15.)

On July 19, 2014, Employer suspended Claimant pending an 

investigation for leaving his gaming table unprotected to put his cell phone in the pit 

stand drawer. On July 20, 2014, Employer’s table games shift manager (Manager) 

fired Claimant because he was on his final progressive disciplinary step when he 

violated Employer’s policy by leaving his table game unattended. The Manager had 

another employee translate and inform Claimant the reason for his termination 

because Claimant’s primary language is Mandarin Chinese. (Id., Nos. 16-19.) 

On November 3, 2014, Claimant filed a claim for UC benefits, asserting 

that Employer had laid him off due to a lack of work. By letter mailed November 5, 

2014, the local service center determined that Claimant was financially eligible for 

UC benefits for the benefit year beginning November 2, 2014. (R. Item No. 3, Ex. 

13.) Employer received the notice on November 6, 2014, which indicated that the 

last date for a timely request for relief from charges was November 20, 2014. (Id.) 
4

On November 26, 2014, Employer filled out the request for relief from charges. (Id.) 

On December 1, 2014, the local service center received Employer’s request for relief 

from charges. (Id.; R. Item No. 1.) The request for relief from charges indicates that 

Employer discharged Claimant because “[h]e walked away from his table, leaving 

cards & money ‘unprotected’ which is a rule violation for which he was disciplined 

in the past.” (R. Item No. 3, Ex. 13.) Claimant received $10,426.00 in UC benefits 

for the time period between November 15, 2014 and May 9, 2015. 

 

Thereafter, the local service center issued three determinations. The 

first determination, mailed on December 1, 2016, denied Claimant benefits pursuant 

to Section 402(e) of the Law, 43 P.S. § 802(e).2 The second determination imposed 

a fault overpayment of $10,426.00, pursuant to Section 804(a) of the Law, 43 P.S. § 

874(a), for claim weeks ending November 15, 2014 through May 9, 2015, because 

Claimant failed to notify the local service center that Employer discharged him and 

instead reported that he was laid off due to lack of work. The third determination 

assessed 28 penalty weeks and a 15% penalty of $1,563.90 pursuant to Section 

801(b) of the Law, 43 P.S. § 871(b), and 801(c) of the Law, 43 P.S. § 871(c), for 

deliberately failing to report his discharge. Claimant appealed to the referee, who 

held a hearing on January 23, 2017. 

At the hearing, Claimant testified that Employer fired him because it 

had “enough people,” making his employment no longer necessary. (N.T., 1/23/17, 

at 29.) However, Claimant admitted that he broke Employer’s rule on the day of his 

 

2 Section 402(e) of the Law provides that an employee shall be ineligible for compensation 

for any week “[i]n which his unemployment is due to his discharge ... from work for willful 

misconduct.” 43 P.S. § 802(e).
5

firing. (Id., at 30.) Employer testified that it dismissed Claimant due to his violation 

of Employer’s rule on July 19, 2014, and Claimant’s having received a final warning 

on his previous rule violation. (Id., at 18-19, 35.) The referee affirmed the service 

center, as modified. The referee found Claimant ineligible for UC benefits under 

Section 402(e) of the Law, 43 P.S. §802(e), “to the extent of the Claimant’s parttime earnings of $429.03.” The referee further found Claimant was overpaid 

$7,852.00 under the fault provisions of Section 804(a) of the Law, 43 P.S. § 874(a), 

for compensation weeks ending November 15, 2014, through May 9, 2015. The 

referee affirmed the assessment of 28 penalty weeks under Section 801(b) of the 

Law, 43 P.S. § 871(b), and affirmed as modified the service center’s assessment of 

a 15% penalty of $1,177.80 under Section 801(c) of the Law, 43 P.S. § 871(c). 

Claimant appealed to the UCBR. On May 4, 2017, the UCBR adopted and 

incorporated the referee’s findings and conclusions, determined that Claimant was 

not credible, and affirmed the determination of the referee. (R. Item No. 15.) 

Claimant now petitions this Court for review.3

Before this Court, Claimant contends that the UCBR erred in 

determining that he was fired due to the rule violation and not because Employer 

had hired too many new dealers.

It is well-established that the UCBR is responsible for determinations 

of credibility and “is free to reject the testimony of any witness, even uncontradicted 

testimony.” Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 

 

3 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 substantial 

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

1003 (Pa. Cmwlth. 2010). “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; (3) a disregard of the standards of behavior that an employer 

rightfully can expect from its employees; or (4) negligence that manifests 

culpability, wrongful intent, evil design, or an intentional and substantial disregard 

of the employer’s interests or the employee’s duties and obligations. Oliver v. 

Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) 

(en banc). When an employee is discharged for violating an employer’s work rule, 

the employer bears the burden of proving the existence of the rule and the 

employee’s violation of the rule. Walsh v. Unemployment Compensation Board of 

Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The burden then shifts to the 

employee to show good cause for his actions, i.e., that his conduct was justified or 

reasonable under the circumstances. Id.

Here, Claimant admitted that he made a mistake when, against 

Employer’s policy, he left his gaming table unattended. However, Claimant asks 

this Court to reassess the credibility of witnesses, resolve those conflicts in 

Claimant’s favor, and determine that Claimant was not fired for leaving his gaming 

table unattended. In UC cases, “the UCBR is the ultimate fact finder and is 

empowered to make credibility determinations.” Bell v. Unemployment 

Compensation Board of Review, 921 A.2d 23, 26 n.4 (Pa. Cmwlth. 2007). Here, the 

UCBR deemed Employer’s witnesses credible and resolved the conflicts in the 

testimony in Employer’s favor. Where substantial evidence supports the UCBR’s 

findings, credibility determinations made by the UCBR may not be re-evaluated by 

this Court. Id.
7

In support of its testimony, Employer submitted Claimant’s 

disciplinary record along with agency documents and the testimony of Employer’s 

claims coordinator and its table games shift manager. A review of the record reveals 

that there was substantial evidence to support the UCBR’s findings and its 

determination that Employer discharged Claimant July 20, 2014 because he was on 

his final progressive disciplinary step when he violated Employer’s policy and left 

his gaming table unattended to put his cell phone in the pit stand drawer. (Referee’s 

F.F. Nos. 16-18.) 

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

Employer’s policy. See Walsh v. Unemployment Compensation Board of Review, 

943 A.2d 363, 369 (Pa. Cmwlth. 2008). However, Claimant’s only excuse for his 

actions was that he made a mistake. This excuse does not justify or make reasonable 

Claimant’s actions. Thus, the UCBR did not err in determining that Claimant failed 

to establish good cause for violating Employer’s policy. The UCBR properly 

concluded that Claimant committed willful misconduct under section 402(e) of the 

Law. 

Next, Claimant contends that he should be exempt from the penalties 

imposed upon him either because he did not intentionally attempt to mislead the 

Department when applying for UC benefits or, alternatively, because employees at 

the local service center directed him to apply for UC benefits without the benefit of 

a Chinese Mandarin translator. 

 
8

Section 804(a) of the Law provides for the recoupment of UC benefits 

as follows:

Any person who by reason of his fault has received any 

sum as compensation under this act to which he was not 

entitled, shall be liable to repay to the [UC] Fund to the 

credit of the Compensation Account a sum equal to the 

amount so received by him and interest....

 

43 P.S. § 874(a).

Section 801(b) of the Law effective at the time of the Department’s 

December 1, 2016 determination provides for the assessment of penalty weeks as 

follows:

Whoever makes a false statement knowing it to be false, 

or knowingly fails to disclose a material fact to obtain or 

increase any compensation or other payment under this act

... may be disqualified in addition to such week or weeks 

of improper payments for a penalty period of two weeks

and for not more than one additional week of improper 

payment....

43 P.S. § 871(b).4

Section 801(c) of the Law provides for the assessment of a penalty as 

follows:

 

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

871(b). Effective May 1, 2017, the Legislature amended Section 871(b) to provide for five penalty 

weeks.
9

Whoever makes a false statement knowing it to be false, 

or knowingly fails to disclose a material fact to obtain or 

increase compensation or other payment under this act ...

and as a result receives compensation to which he is not 

entitled shall be liable to pay to the [UC] Fund a sum equal 

to fifteen per centum (15%) of the amount of the 

compensation....

43 P.S. § 871(c).5

A finding of fault under Section 804(a) requires a finding by the referee 

or the UCBR as to the claimant’s state of mind. Maiorana v. Unemployment 

Compensation Board of Review, 453 A.2d 747, 749 (Pa. Cmwlth. 1982). “Fault” is 

more than a voluntary act; rather, it “connotes an act to which blame, censure, 

impropriety, shortcoming, or culpability attaches....” Chishko v. Unemployment 

Compensation Board of Review, 934 A.2d 172, 177 (Pa. Cmwlth. 2007) (quoting 

Kelly v. Unemployment Compensation Board of Review, 840 A.2d 469, 473 (Pa. 

Cmwlth. 2004)). An intentional misstatement by a claimant on an application for 

benefits can support a finding of fault. Fugh v. Unemployment Compensation Board 

of Review, 153 A.3d 1169, 1174 (Pa. Cmwlth. 2017) (citing Matvey v. 

Unemployment Compensation Board of Review, 531 A.2d 840, 844 (Pa. Cmwlth. 

1987)). If a claimant withholds information or provides misleading information that 

is material to his or her eligibility for benefits, a fault overpayment has been 

established. Chishko, 934 A.2d at 177. However, a claimant cannot be held liable 

for a fault and/or a fraud overpayment for mere mistake or confusion. Fugh, 153 

A.3d at 1177.

 

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

871(c).
10

Here, Claimant reported in his application for benefits that he was 

unemployed due to a lack of work on the part of the employer. (Referee’s F.F. No. 

21.) Because of Claimant’s indication that he was unemployed because of a lack of 

work, the Department determined that he was eligible for benefits. The UCBR 

determined that Claimant had actually been terminated by Employer because of 

multiple and repeated violations of Employer’s policies. As a result, the UCBR 

determined that Claimant “intentionally misled the Department in reference to his 

reason for separation from the employer.” (Id. at No. 22.)

Review of the record demonstrates that there was substantial evidence 

to support the UCBR’s determination that Claimant intentionally misled the 

Department when applying for benefits. Claimant had received written warnings by 

Employer on at least four occasions for different violations of Employer’s policies 

prior to the incident resulting in his termination, including a written warning on one 

prior occasion for the type of offense that resulted in his firing. Additionally, 

Claimant admitted at the hearing that Employer informed him that he was being 

terminated. (N.T., 1/23/17, at 31.) As a result, substantial evidence supported the 

UCBR’s determination that Claimant’s failure to disclose the true nature of his 

separation from Employer warranted the imposition of a fault overpayment charge 

under Section 804(a), penalty weeks under Section 801(b), and a fifteen-percent 

penalty under Section 801(c) of the Law.

Claimant’s argument that his lack of access to a Chinese Mandarin 

translator when preparing his application for benefits exempts him from the fault 

overpayment charge is also without merit. The UCBR concluded that, although 
11

Chinese Mandarin is Claimant’s primary language, the UCBR found credible 

testimony that Claimant was required to be able to speak and understand English in 

order to carry out his duties as a table games dealer. (Referee’s Decision/Order at 

4; N.T., 1/23/17, at 18.) Claimant’s supervisor also testified at the hearing that 

Claimant, in fact, could understand English. (N.T., 1/23/17, at 25.) As a result, the 

UCBR determined that, based on the totality of the evidence in the record before it, 

Claimant intentionally misled the Department in his application for benefits when 

he stated that he was unemployed because of a lack of work.

Accordingly, we affirm the decision of the UCBR finding Claimant 

ineligible for UC benefits and subject to penalties pursuant to Sections 402(e), 

804(a), 801(b), and 801(c) of the Law.

__________________________________

J. WESLEY OLER, JR., Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shanyong G. Wu, :

Petitioner :

:

v. : No. 729 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 5

th day of January, 2018, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

__________________________________

J. WESLEY OLER, JR., Senior Judge