IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Masonic Village, :

Petitioner :

:

v. : No. 2019 C.D. 2013

: Submitted: August 1, 2014

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: August 14, 2014

Masonic Village (Employer) petitions for review of an order of the 

Unemployment Compensation Board of Review (Board) that reversed a Referee’s 

decision and determined that Jean Radatti (Claimant) is not ineligible for 

unemployment compensation benefits under Section 402(e) 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). Section 402(e) of the Law provides that “[a]n employe shall be ineligible for 

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

for willful misconduct connected with his work....”
2

Claimant worked as a part-time wellness center coordinator from April 

2008 to May 2013 when she was discharged for willful misconduct for failing to 

comply with Employer’s verbal directive that she stop working after she had clocked 

out for the day.2 Claimant filed for benefits with the UC Service Center, which 

determined that Claimant’s actions did not constitute willful misconduct and that she 

was not ineligible for benefits under Section 402(e) of the Law. Employer appealed.

Before the Referee, to demonstrate that Claimant engaged in willful 

misconduct, Employer’s Director of Human Resources, William Chambley

(Chambley), testified that he called a meeting with Employer’s Executive Director, 

Adrienne Staudenmayer (Staudenmayer), and Claimant on May 23, 2013, and

addressed Claimant’s practice of punching out and then continuing to work. He 

stated that Staudenmayer told Claimant that this practice was a violation of the wage 

and hour rules and Employer’s policy and that Claimant had to stop doing it 

immediately. Chambley testified that Claimant stated that she understood and would 

 

2

The burden of proving willful misconduct rests with the employer. Guthrie v. 

Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). When a 

claimant is terminated for refusing to comply with an employer directive, the employer has the 

burden to establish the reasonableness of the directive and that the claimant refused to comply. 

Blue v. Unemployment Compensation Board of Review, 616 A.2d 84, 85 (Pa. Cmwlth. 1992), 

appeal denied, 626 A.2d 1159 (Pa. 1993). A claimant’s refusal to comply with a reasonable verbal 

directive, even in the absence of a rule violation, may constitute willful misconduct. Bailey v. 

Unemployment Compensation Board of Review, 457 A.2d 147, 149 (Pa. Cmwlth. 1993). Once the 

employer meets its burden, the burden shifts to the claimant to show good cause for her refusal to 

comply with the directive. Blue, 616 A.2d at 86. A claimant has good cause if her actions are 

reasonable and justifiable under the circumstances. Docherty v. Unemployment Compensation 

Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether an employee’s conduct 

constitutes willful misconduct and whether a claimant has proved good cause are questions of law 

subject to our review. Department of Corrections v. Unemployment Compensation Board of 

Review, 943 A.2d 1011, 1015-16 (Pa. Cmwlth. 2008).
3

no longer continue to work after she punched out. He stated that on the following 

day, May 24, 2013, they discovered that following the meeting, Claimant had 

punched out at 4:59 p.m. and had continued to work until 5:33 p.m. Chambley 

testified that, as a result, they called Claimant and told her not to come to work so 

that they could investigate her violation of Employer’s directive. He stated that 

Claimant was discharged for insubordination for violating the directive. Chambley 

also identified two e-mails that Claimant sent explaining that she was beside herself 

with anxiety and fear and was hysterical and not thinking clearly after the meeting 

and just forgot the directive and explained that she did not willfully disregard the 

directive because she thought that Employer understood that she would need extra 

time on that day to get things in order before she left. (Reproduced Record (R.R.) at 

67a-68a).

Staudenmayer testified that the May 23rd meeting was called to address 

Claimant’s no call/no show earlier in the week in which Claimant reported late to 

work due to her medical issues. Staudenmayer stated that, in the interim, she

discovered that Claimant was punching out and then going back to work. She

testified that she had several conversations with Claimant regarding the need to stay 

beyond normal work hours and that Claimant needed to call her to get overtime 

authorized. Staudenmayer stated that at the meeting, she explained to Claimant that it 

was a violation of the wage and hour rules and Claimant stated that she understood it 

was a violation and would never do it again. Staudenmayer testified that Claimant 

was terminated because she ended up doing it again that same day.
4

Claimant testified that she suffers from myalgic encephalomyelitis, and 

that the May 23rd meeting was called to discuss her lateness on May 20th due to her 

medical condition and not her practice of working after clocking out. She stated that

it was announced at the outset of the meeting that they were there to discuss her 

termination. Claimant explained that as a result, she was upset, trembling inside and 

filled with anxiety both during and after the meeting. She stated that while 

Staudenmayer mentioned that her continuing to work after clocking out violates labor 

laws in passing and that it was an afterthought, there was no discussion of the issue at 

the meeting. Claimant testified that after the meeting, she simply forgot Employer’s 

directive and clocked out at her normal time and continued working to finish what 

she was working on because she had no recollection of Employer’s directive. 

Claimant stated that she never committed a willful act of misconduct and she never 

thought that she was returning to willfully disobey a rule.

The Referee reversed the Service Center’s determination, finding that 

Claimant is ineligible for benefits under Section 402(e) because she violated 

Employer’s reasonable directive to stop working after she clocked out without good 

cause. On appeal, the Board reversed the Referee and awarded benefits, stating:

Here, although the employer credibly testified that it 

advised the claimant that working off the clock was a 

violation of wage and hour laws, the Board concludes that 

the claimant had good cause for failing to adhere to the 

employer’s directive. The claimant credibly testified that 

she became stressed and distraught during the meeting and 

had forgotten about the employer’s discussion relating to 

the wage and hour laws. As such, while the Board in no 

way questions the employer’s right to discharge an 

unsatisfactory employee, the Board cannot conclude that the 
5

claimant’s actions [constitute] willful misconduct under 

Section 402(e) of the Law.

(Board’s 10/18/13 Decision and Order at 2).

In this appeal,3Employer argues that the Board erred in granting benefits 

because its finding that Claimant had good cause for violating Employer’s directive is 

not supported by substantial evidence because expert medical evidence connecting 

her memory loss to her medical condition was required.

4

 However, the Board merely 

found that Claimant forgot the discussion regarding working off the clock and 

Employer’s directive because she was stressed and distraught by the discussion of her 

potential termination. (Board’s 10/18/13 Decision and Order at 1-2). This finding is 

amply supported by substantial evidence. (R.R. at 58a-59a, 60a, 62a, 65a-66a, 67a, 

68a). The Board did not specifically find that Claimant’s memory lapse was caused 

by her medical condition and, while Claimant did try to tie her condition to her failure 

to comply during the hearing, she did not do so in the e-mails that she sent to 

 

3 Our review of the Board’s decision is limited to determining whether there was a 

constitutional violation or an error of law, whether any Board practice or procedure was not 

followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn 

v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).

4

This claim has been waived because Employer did not raise the issue of the necessity of 

expert medical evidence connecting Claimant’s medical condition to her memory lapse in its 

petition for review. See generally United Transportation Union v. Pennsylvania Public Utility 

Commission, 68 A.3d 1026, 1042 (Pa. Cmwlth.), appeal denied, 80 A.3d 779 (Pa. 2013) (“To 

properly preserve an issue, a petition for review filed pursuant to Pa. R.A.P. 1513(d), requires a 

general statement of objections and provides the statement of objections ‘will be deemed to include 

every subsidiary question fairly comprised therein.’ Issues not raised in the petition for review will 

not be addressed.”) (citations omitted). Nevertheless, we will address this claim on the merits.
6

Employer that Employer introduced at the hearing and that were addressed in both 

Chambley’s and Claimant’s testimony. (Id. at 58a-59a, 62a, 67a, 68a). The Board 

was free to accept the evidence demonstrating that Claimant merely forgot 

Employer’s directive due to the stress and anxiety caused by her potential 

termination, and it was not required to make a specific finding that Claimant’s 

medical condition affected her memory or to credit her testimony in this regard.

5

Moreover, the Board did not err in determining that Claimant is not 

ineligible under Section 402(e) of the Law because her failure to comply with 

Employer’s directive was neither intentional nor deliberate.6 Grieb v. Unemployment 

Compensation Board of Review, 827 A.2d 422, 425-27 (Pa. 2003); Zimmerman v. 

Unemployment Compensation Board of Review, 836 A.2d 1074, 1079 (Pa. Cmwlth. 

2003); Bucher v. Unemployment Compensation Board of Review, 463 A.2d 1241, 

1243 (Pa. Cmwlth. 1983).

 

5

The Board is the ultimate finder of fact in unemployment compensation proceedings. Peak 

v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1389 (Pa. 1985); Chamoun v. 

Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of 

credibility are for the Board, which may either accept or reject a witness’ testimony whether or not it is 

corroborated by other evidence of record. Id. Findings of fact are conclusive on appeal if the record 

contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of 

Review, 378 A.2d 829, 831 (Pa. 1977).

6

See generally Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209, 1217 

(Pa. 2012) (“[D]isqualification provisions, such as Section 402(e), should be narrowly construed 

and a claimant must not be denied compensation unless [s]he is unequivocally excluded by the plain 

language of these provisions.”) (citation omitted).
7

Accordingly, the Board’s order is affirmed.

_____________________________________

DAN PELLEGRINI, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Masonic Village, :

Petitioner :

:

v. : No. 2019 C.D. 2013

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 14th day of August, 2014, the order of the 

Unemployment Compensation Board of Review at No. B-556917 is affirmed.

____________________________________

DAN PELLEGRINI, President Judge