IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John S. Kirchner, :

Petitioner :

:

v. : No. 919 C.D. 2020

:

Unemployment Compensation : Submitted: May 27, 2022

Board of Review :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: May 17, 2023

John S. Kirchner (Claimant) petitions for review, pro se, of the August 21, 

2020 order of the Unemployment Compensation (UC) Board of Review (Board), which 

affirmed the Referee’s decision that Claimant was ineligible for unemployment 

benefits under Section 402(e) of the UC Law (Law), 43 P.S. § 802(e), relating to willful 

misconduct.

1

 Upon review, we affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

Claimant worked for the 911 Emergency Call Center for Lehigh County 

(Employer), full-time, as a Communications Center Shift Supervisor from January 16, 

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), 

which states, in relevant part, that “[a]n employe shall be ineligible for compensation for any week .

. . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful 

misconduct. . . .”
2

1984 until January 21, 2020. (Finding of Fact (F.F.) No. 1.) On January 21, 2020, 

Claimant was discharged for violating Employer’s zero-tolerance policy (Alcohol 

Policy), which prohibits employees from possessing, dispensing, and consuming 

alcohol while at work. (F.F. No. 8.) 

On January 23, 2020, Claimant applied for UC benefits and submitted a 

benefits questionnaire. Claimant was asked several questions on the benefits 

questionnaire regarding his discharge and his knowledge of Employer’s Alcohol 

Policy. Claimant was questioned and answered as follows: 

Q: Were you discharged or suspended as a result of a rule 

violation?

A: Y

Q: Were you aware of this rule violation? 

A: Y

Q: Was this rule uniformly enforced?

A: No

Q: If no, please explain.

A: I WAS NOT OFFERED THE OPTION OF 

RESIGNATION AS 7 OTHER EMPLOYEES WERE

Q: Did violation of the rule require a discharge of suspension? 

A: Y

Q: What was the rule that you were accused of violation? 

A: USE, POSSESSION, SALE OR DISTRIBUTION OF 

ALCOHOL BEVERAGES DURING WORK HOURS

(Certified Record (C.R.) at 10) (emphasis in original.) On February 7, 2020, the local 

service center determined that Claimant was ineligible for benefits under Section 

402(e) of the Law, and Claimant appealed. 

A Referee conducted a hearing on March 12, 2020. Employer admitted

Claimant’s initial claims form and Employer’s disciplinary procedures and policies. 

(Notes of Testimony (N.T.) at 2.) Marc Redding, Employer’s human resources 
3

director, testified that on January 10, 2020, he received an anonymous letter that eleven 

employees consumed alcohol on the premises during work hours on New Year’s Eve. 

(N.T. at 3.) Mr. Redding testified that 3 of the 11 employees, including Claimant, were 

supervisors who were dismissed because they were “held to a higher standard because 

no one objected to the actions they took that night.” (N.T. at 4.) During Employer’s 

investigation, Claimant admitted to consuming “more than one shot” of alcohol. (N.T. 

at 4.) 

Additionally, Mr. Redding testified that Employer’s Alcohol Policy

prohibits employees from possessing, dispensing, and consuming alcohol while 

working. (N.T. at 4-5.) The Alcohol Policy is a “second group offense” which is 

subject to immediate dismissal. (N.T. at 5.) Mr. Redding testified that “[Claimant]

was aware of the policies when he was hired; however, the policies were updated in 

2008.” Id. When the policies were updated in 2008, Claimant signed an 

acknowledgment form that he received a new policies and procedures manual and 

signed that he knew or should have been aware of the policy. Id. Employer introduced 

into evidence a copy of the signed policies and procedures manual acknowledgment 

form dated December 30, 2008, on which Claimant “assume[d] responsibility for 

reading, understanding, and following the policies and procedures contained herein.” 

(C.R. at 120.) Moreover, Mr. Redding testified that all policies are available on the 

intranet employee account and that employees could access the policies there or request 

copies. (N.T. at 7.) Mr. Redding stated that Employer considered the safety-sensitivity 

of his position as a shift supervisor, which requires him to be “clear in thought while 

working there by answering distress calls,” and did not consider the amount he drank. 

(N.T. at 51.) 

In an effort to establish that Employer tolerated infractions, Claimant 

testified that there were two other incidents of the Alcohol Policy not being enforced. 

Specifically, Claimant stated there were wrapped alcohol bottles under the Christmas 
4

tree for a secret Santa gift exchange and an alcoholic mixed drink in the refrigerator in 

the break room. (N.T. at 17-21.) Claimant stated that, to his knowledge, no employees 

were disciplined for these violations. (N.T. at 22.) Additionally, Claimant recalled one 

other instance where the Alcohol Policy was not enforced in the fall of 2019, in which 

an employee was gifted a wrapped bottle of liquor. (N.T. at 23.) Claimant stated that 

he had access to the intranet but had not accessed Employer’s policies. (N.T. at 26.) 

Claimant testified that even though he was a supervisor, he was unaware of Employer’s 

Alcohol Policy. Id. In complete contradiction to that testimony, he answered on crossexamination that on the benefits questionnaire, he was aware of the Alcohol Policy at 

the time he applied for UC benefits. Id. During the hearing, Claimant questioned and 

testified as follows: 

[Q:] Okay. So I believe this was Service Center Exhibit #7, 

the Internet Claim. Question #12 that you answered, were 

you aware of the policy? And I believe you stated yes. Isn’t 

that correct?

[A:] That’s what I replied there. Yes, I did, but that was not 

what I was thinking of at the time. 

[Q:] Okay. So you were aware of the policy, and you said 

yes. 

[A:] At - - that’s what I clicked on, yes. 

Id. 

The Referee affirmed the service center’s determination that Claimant was 

ineligible for UC benefits. The Referee found Mr. Redding’s testimony credible that 

Employer has a policy that prohibits employees from possessing, distributing, or using 

alcohol while at work. (Referee’s decision at 2.) The Referee rejected Claimant’s 
5

testimony that he was unaware of Employer’s Alcohol Policy and concluded that 

because Claimant was a 36-year employee and a supervisor, he was or should have 

been aware of Employer’s rules/policies and how to access them. Id. The Referee 

further determined that “[C]laimant, as a supervisor, bore responsibility to help 

[Employer] enforce this policy” and his “participation in violating that policy and not 

reporting prior violations he witnessed is conduct below the standard an employer can 

reasonably expect from its employees.” Id. 

Claimant appealed to the Board and by a decision and order dated August 

21, 2020, the Board affirmed the Referee’s decision and adopted the Referee’s finding 

of fact and legal conclusions. (Board’s decision at 1.) In addition, the Board 

specifically relied on Claimant’s admission in the benefits questionnaire that he knew 

of the Alcohol Policy and that he consumed alcohol during his work shift. Id. The 

Board stated that it could not conclude, based on the evidence provided by Claimant, 

that Employer was aware of employees consuming alcohol while on duty or that 

Employer condoned consumption of alcohol on the job. Id. The Board also credited 

Employer’s testimony that the Alcohol Policy was consistently enforced. Id.

II. ISSUES

On appeal,2 Claimant asserts the Board erred as a matter of law in denying 

his claim for UC benefits under Section 402(e) of the Law.3 From what this Court can 

surmise from Claimant’s brief, Claimant is arguing that his actions did not constitute 

2 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 Compensation Board of Review, 83 A.3d 484, 486 n.2 

(Pa. Cmwlth. 2014).

3 The issues as set forth in Claimant’s brief, are as follows: whether the Board erred in

concluding that he violated Employer’s Alcohol Policy during work hours and whether the Board

erred in concluding that he is ineligible for benefits under the provisions of Section 402(e). 

(Claimant’s Br. at 6.) 
6

willful misconduct because he was unaware of the Alcohol Policy and that Employer 

inconsistently enforced it, thus rendering it a nullity. 

III. DISCUSSION

A. Willful Misconduct 

In his first issue, Claimant argues that Employer failed to meet its burden 

of proving willful misconduct. Specifically, Claimant contends that he was not aware 

of Employer’s policies thus, could not have committed willful misconduct. Initially, 

we recognize: 

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

ineligible for unemployment compensation 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 an unemployment 

compensation 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.

Department of Transportation v. Unemployment Compensation Board of Review, 755 

A.2d 744, 747–48 n. 4 (Pa. Cmwlth. 2000) (citation omitted). Where an employer 

asserts a violation of its rule or policy as willful misconduct, the employer has the 

burden to show that the claimant was aware of the work rule and the claimant violated

the rule. Roberts v. Unemployment Compensation Board of Review, 977 A.2d 12, 16 

(Pa. Cmwlth. 2009); Melomed v. Unemployment Compensation Board of Review, 972 

A.2d 593, 594 (Pa. Cmwlth. 2009); Williams v. Unemployment Compensation Board 

of Review, 926 A.2d 568 (Pa. Cmwlth. 2007). “The employer must present evidence 

that the claimant intentionally or deliberately violated the rule.” Tongel v. 
7

Unemployment Compensation Board of Review, 501 A.2d 716, 717 (Pa. Cmwlth. 

1985). A claimant cannot be found to have willfully or intentionally violated a rule of 

which he was unaware. Id. Our courts have repeatedly held that consuming intoxicants 

at any volume justifies a finding of willful misconduct where the employee is aware of 

a rule prohibiting such conduct. See Robinson v. Unemployment Compensation Board 

of Review, 414 A.2d 143 (Pa. Cmwlth. 1980); Walz v. Unemployment Compensation 

Board of Review, 402 A.2d 1146 (Pa. Cmwlth. 1979); Chambers v. Unemployment 

Compensation Board of Review, 318 A.2d 422 (Pa. Cmwlth. 1974). 

In addition, it is well-settled that the Board is the ultimate finder of fact in 

unemployment compensation proceedings, and is, therefore, entitled to make its own 

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

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

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

Thus, in the face of conflicting evidence, the Board exercises its discretion to resolve 

conflicts, and its credibility determinations “are not subject to re-evaluation on judicial 

review.” Peak, 501 A.2d at 1388. Findings of fact are conclusive upon review 

provided that the record, taken as a whole, contains substantial evidence to support the 

findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 

1977). This Court must examine the evidence in the light most favorable to the party 

that prevailed before the Board and give that party the benefit of all inferences that can 

be logically and reasonably drawn from the testimony. Id.

Here, there is no dispute regarding the reasonableness of Employer’s 

Alcohol Policy. We also conclude that there is substantial evidence of record 

supporting the finding that Claimant was aware of the Alcohol Policy. Employer’s 

human resources director, Mr. Redding, testified credibly that in 2008, Claimant was 

made aware of all Employer policy updates and that he was given a copy of the policies
8

and signed an acknowledgment form that he had received the policies. The Alcohol 

Policy states that consuming alcohol during work warrants discharge. 

Moreover, Claimant admitted that he was aware of the Alcohol Policy. 

Specifically, in Claimant’s benefits questionnaire he was asked: “[w]ere you 

discharged or suspended as a result of a rule violation?” to which Claimant answered 

“Y.” (C.R. at 10.) Claimant was then asked a follow-up question, “[w]ere you aware 

of this rule violation?” to which he responded “Y.” Id. The Board found, based on 

this evidence, that Claimant was aware of Employer’s Alcohol Policy. The Board 

deemed Claimant’s testimony that he was unaware of the Alcohol Policy not credible. 

Credibility determinations are exclusively within the province of the Board as fact 

finder in unemployment compensation cases. Peak; Chamoun. We do not disturb the 

Board’s credibility determination. Employer met its burden of proving that Claimant 

was aware of Employer’s Alcohol Policy, which warrants discharge.

Additionally, during Employer’s investigation, Claimant admitted he 

drank alcohol with other employees at the 911 Call Center. Because Claimant was a 

supervisor, he was responsible for enforcing all of Employer’s policies. It almost goes 

without saying that consuming any amount of alcohol while working as a supervisor at 

the 911 Call Center is inimical to Employer’s interests. It is elementary that all

employees at the 911 Call Center, regardless of their hierarchical role, must be clear of 

thought and free of the influence of any amount of intoxicants, even absent such a 

policy like Employer’s Alcohol Policy. Based on this substantial evidence, the Board 

concluded that Claimant committed willful misconduct, and, therefore, was ineligible 

for UC benefits under Section 402(e) of the Law. 43 P.S. § 802(e). 

Accordingly, we conclude that there is substantial record evidence to 

support the conclusion that Claimant committed willful misconduct. 
9

B. Inconsistent Enforcement 

Notwithstanding his admitted alcohol consumption, Claimant argues that 

Employer inconsistently enforced its Alcohol Policy because there were other 

undisciplined violations.

Where, as here, an employer proves a rule violation, the burden shifts to 

the claimant to prove he had good cause for his willful misconduct. Walsh v. 

Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 

2008). A claimant may show good cause by demonstrating the uneven or inconsistent 

enforcement of a policy. “Inconsistent enforcement of a work rule defeats the existence 

of the work rule.” Allen v. Unemployment Compensation Board of Review, 189 A.3d 

1128, 1136 (Pa. Cmwlth. 2018) (internal citations omitted). “Inconsistent enforcement 

occurs where an employer enforces a rule so inconsistently that it no longer appears to 

be a rule that employees must follow.” Gordon Terminal Service Co. v. Unemployment 

Compensation Board of Review, 211 A.3d 898, 900 (Pa. Cmwlth. 2019). 

To defend his willful misconduct, Claimant argues Employer 

inconsistently enforced its Alcohol Policy and testified to several incidents where 

alcohol has been present at the workplace without discipline. The Board rejected 

Claimant’s argument that Employer inconsistently enforced its Alcohol Policy and 

explained: 

Claimant admitted he was aware of [E]mployer’s work rule 

and that [C]laimant consumed alcohol while on duty in 

violation of that work rule. On appeal, [C]laimant argues that 

the Referee erred by not accepting [C]laimant’s witnesses’

testimony regarding [C]laimant’s knowledge of the work 

rule and [E]mployer’s uniformed enforcement of the work 

rule. However, [C]laimant admitted that the 911 [Call] 

[C]enter had only conducted a secret Santa gift exchange for 

one prior year and, at the previous year’s secret Santa, 

[C]laimant and his coworkers did not consume alcohol. 

Therefore, based on [C]laimant’s evidence, the Board 
10

cannot conclude that [E]mployer was aware of employees 

consuming alcohol while on duty or that [E]mployer

condoned consumption of alcohol on the job. The Board 

finds [E]mployer’s testimony credible that the work rule 

was consistently enforced and accepts its version of 

events.

(Board decision at 1) (emphasis added).

The Board determined that Claimant’s testimony did not credibly show 

that Employer inconsistently enforced its policy. The Board is empowered to resolve 

conflicts in the evidence. Serrano v. Unemployment Compensation Board of Review, 

149 A.3d 435, 439 (Pa. Cmwlth. 2016). “Questions of credibility and the resolution of 

evidentiary conflicts are within the sound discretion of the Board and are not subject 

to reevaluation on judicial review.” Id. (quoting Peak, 501 A.2d at 1388). Because 

Claimant failed to establish that he had good cause to violate Employer’s work rule, 

the Board correctly concluded that Claimant engaged in willful misconduct. 

IV. CONCLUSION

Based on the foregoing reasons, we affirm the Board’s decision. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John S. Kirchner, :

Petitioner :

:

v. : No. 919 C.D. 2020

:

Unemployment Compensation :

Board of Review :

Respondent :

ORDER

AND NOW, this 17th day of May, 2023, the August 21, 2020 Order of 

the Unemployment Compensation Board of Review is hereby AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge