IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shiloh Homecare Corporation :

d/b/a ComForCare : No. 1964 C.D. 2015

Senior Services-York County, : Submitted: February 26, 2016

:

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: May 18, 2016

Shiloh Homecare Corporation d/b/a ComForCare Senior Services –

York County (Employer) petitions for review of the September 25, 2015 order of 

the Unemployment Compensation Board of Review (Board), affirming a referee’s 

decision and holding that Tierra Washington (Claimant) was 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), which provides that an employee shall be ineligible for compensation for any week in 

which her unemployment is due to her discharge or temporary suspension from work for willful 

misconduct connected with her work.
2

Claimant was employed by Employer as a full-time home health aide 

from July 30, 2011 to April 10, 2015, earning $9.75 per hour. Employer’s policy 

requires employees to call Employer fifteen minutes before the start of a shift to 

report a tardiness. The policy provides that three occurrences of tardiness within 

ninety days will result in an employee’s discharge. Employees receive two 

counselings, either verbal or written, prior to being discharged. Findings of Fact 

Nos.1-4.

On January 16, 2015, Claimant was counseled for tardiness and for 

failing to use the client’s phone to clock-in to work. She was counseled for the 

same reasons on February 23, 2015, and April 7, 2015. On April 10, 2015, she 

received a final counseling after being tardy three times in one week, and she was 

advised that one more instance of tardiness would result in her discharge. Findings 

of Fact Nos. 5-8.

Claimant’s car broke down in November 2014 and she could not 

afford to purchase another one. Claimant notified Employer about her 

transportation problem. After November 2014, Claimant relied on her mother and 

friends to take her to and from work, and they were not always reliable. Findings 

of Fact Nos. 9-11.

On April 13, 2015, Claimant’s transportation was late. She called 

Employer two minutes before the start of her shift and advised Employer she 

would be late due to her transportation issues. Claimant was late to work, and 

Employer discharged her that day for excessive tardiness. Findings of Fact Nos. 

12-14.
3

The local service center determined that Claimant was not ineligible 

for unemployment benefits, and Employer appealed. A referee conducted a

hearing at which Claimant and Jennifer Foley (Foley), Employer’s owner, testified. 

Foley described Employer’s policies and said that Claimant was 

aware of them. Reproduced Record (R.R.) at 60a-61a. Foley stated that Employer 

counseled Claimant on January 16, 2015, February 23, 2015, and April 7, 2015, for 

tardiness and for failing to use the client’s phone to clock-in to work. Foley 

testified that Employer gave Claimant a written warning on April 10, 2015, 

informing her that she had three tardies within one week and that one more tardy 

would result in her termination. Foley said that Claimant signed this document.

R.R. at 62a.

Foley testified that on April 13, 2015, Claimant’s shift was to start at 

9:00 a.m. Foley said that Claimant called sometime between 9:10 a.m. and 9:20 

a.m. to report that she was late for work because her ride did not show up. Foley 

stated that Employer sent a replacement for Claimant at 9:30 a.m. R.R. at 62a-63a.

Foley stated that this final incident was written up as “late for work” which 

resulted in Claimant’s termination. Foley complained that Claimant was late 29 

times after she was counseled on January 12, 2015. However, Foley testified that 

if Claimant had not been late on April 13, 2015, she would not have been fired.

R.R. at 65a.

Claimant testified that she began working for Employer, Mondays

through Thursdays for a 36-hour week. After eighteen months, Claimant’s client 

became ill, and Claimant was assigned to work an additional eight hours on Friday.

R.R. at 59a. Claimant said that her client’s daughter met her every morning and 

updated Claimant on her client’s condition. Claimant added that the daughter also 
4

worked, and Claimant often spoke with her before calling Employer to clock-in.2

R.R. at 68a-69a.

Claimant stated that she lost her means of transportation in November 

2014 when her car broke down, and that she could not afford to buy another car.

Claimant explained that she supported a family of three on her salary, which had 

just reached $9.75 an hour in 2015. Claimant said that she depended on rides, 

which were not always reliable, from family and friends to get to work and get her 

children to two different places for daycare. Claimant stated that she explained her 

transportation difficulties to Employer. R.R. at 68a-69a.

Concerning the April 13, 2015 incident, Claimant testified that she 

called Employer at 8:58 a.m., two minutes before the start of her shift, to advise 

Employer that she would be late for work because her transportation was late 

picking her up. R.R. at 70a-71a.

In a June 12, 2015 decision, the referee issued the findings 

summarized above and concluded that Claimant was not ineligible for benefits due 

to willful misconduct. The referee recognized that Claimant was discharged for 

excessive tardiness, but credited Claimant’s testimony that she lost her means of 

transportation, could not afford a new car, and had to depend on others who were 

not always reliable to provide her transportation to and from work. The referee 

concluded that while Employer certainly had the right to discharge Claimant, the 

facts did not establish a basis to deny benefits. Employer appealed to the Board 

which affirmed the referee’s decision and adopted the referee’s findings and 

conclusions.

 

2 Claimant worked for the same client Mondays through Thursdays from January 2015 

until the client’s death in April 2015. R.R. at 66a.
5

On appeal to this Court,3 Employer argues that the Board erred in 

concluding that Claimant’s habitual tardiness and her actions on April 13, 2015, 

did not constitute willful misconduct. Employer asserts that the Board also erred 

in determining that Claimant’s continued reliance on an unreliable mode of 

transportation constituted good cause for her conduct.

An employer bears the burden to demonstrate that a claimant is 

ineligible for unemployment compensation benefits due to willful misconduct.

Holomshek v. Unemployment Compensation Board of Review, 395 A.2d 708, 709

(Pa. Cmwlth. 1979). The Law does not define “willful misconduct,” but our courts 

have defined it as including: an act of wanton or willful disregard of the 

employer’s interest; a deliberate violation of the employer’s rules; a disregard of 

standards of behavior which the employer has a right to expect from an employee;

and negligence indicating an intentional disregard of the employer’s interest, or of 

the employee’s duties and obligations to the employer. Altemus v. Unemployment 

Compensation Board of Review, 681 A.2d 866, 869 (Pa. Cmwlth. 1995). Where 

the allegation of willful misconduct is based on a violation of the employer’s work 

rule, the employer must show the existence of a reasonable work rule and the 

claimant’s violation of the rule. Williams v. Unemployment Compensation Board 

of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007). Once the employer meets its 

burden, the burden shifts to the claimant to establish good cause for her conduct.

Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 719 

(Pa. Cmwlth. 2013).

 

3 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether errors of law were committed, or whether findings of fact are supported by 

substantial evidence. Schneider v. Unemployment Compensation Board of Review, 12 A.3d 754, 

756 n.1 (Pa. Cmwlth. 2010).
6

Here, Employer established that Claimant was discharged for 

excessive instances of tardiness in violation of Employer’s policy. The burden 

then shifted to Claimant to establish good cause for her conduct.

Employer characterizes the reason for Claimant’s tardiness as her 

failure to secure reliable transportation. Citing Spicer v. Commonwealth, 407 A.2d 

929, 931 n.2 (Pa. Cmwlth. 1979), Employer argues that Claimant’s continued 

reliance on transportation that she knew was not reliable constituted willful 

misconduct.

In Spicer, we observed that a claimant who was late because of a 

series of transportation problems beyond his control would not be ineligible for 

benefits due to willful misconduct. There, the claimant, who had a history of 

tardiness and absenteeism, did not own a car and relied on fellow employees for 

rides to work, which were not always available. The Board held that he was 

discharged for tardiness and ineligible for benefits under Section 402(e), but the 

Board did not address the claimant’s reasons for his lateness. We vacated the 

Board’s holding and remanded for the Board to determine whether the claimant’s 

explanation was credible and established good cause. Id. at 931. Thus, the holding 

in Spicer does not support Employer’s argument and Employer’s reliance on 

Spicer is misplaced.

Claimant contends that her financial situation is similar to that of the 

claimant in Bell Socialization Services, Inc. v. Unemployment Compensation 

Board of Review, 74 A.3d 1146 (Pa. Cmwlth. 2013). In Bell, we affirmed the 

Board’s finding that the claimant established good cause for violating the 

employer’s work rule that required employees to have reliable transportation.

Working as a full-time residential service provider, earning $9.00 per hour, the 
7

claimant possessed a car which eventually failed mechanically. Although she 

made subsequent arrangements to borrow her mother’s car, this car was lost to an 

accident. We held that, because her vehicle complications were unforeseen and 

she did not have sufficient income to repair her car or purchase a new one, the 

claimant established good cause for violating the employer’s work rule and was 

not ineligible for unemployment benefits. Id. at 1148-49.

Employer argues that Bell does not apply because Claimant did not 

establish that it was impossible to secure reliable transportation. (Employer’s brief 

at 3). However, Employer does not challenge the Board’s finding that Claimant 

could not afford to buy another car. Additionally, Claimant testified that her 

children are taken to different daycares before Claimant reports for work at a 

client’s home. We conclude that while Employer was justified in discharging 

Claimant based on her tardiness, the record does not support a denial of benefits.4

Accordingly, we affirm the Board’s order.

MICHAEL H. WOJCIK, Judge

 

4

See Adept Corporation v. Unemployment Compensation Board of Review, 437 A.2d 

109, 111 (Pa. Cmwlth. 1981) (although the employer was justified in discharging the claimant, 

the claimant established good cause for his absence because of car problems requiring 

mechanical attention).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shiloh Homecare Corporation :

d/b/a ComForCare : No. 1964 C.D. 2015

Senior Services-York County, : 

:

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, :

:

Respondent :

O R D E R

AND NOW, this 18th day of May, 2016, the order of the 

Unemployment Compensation Board of Review, dated September 25, 2015, is 

affirmed.

__________________________________

MICHAEL H. WOJCIK, Judge