IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine A. Diamond, :

Petitioner :

:

v. : No. 1507 C.D. 2016

: Submitted: October 17, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE BROBSON FILED: November 17, 2017

Petitioner Catherine A. Diamond (Claimant) petitions this Court for 

review of an order of the Unemployment Compensation Board of Review (Board). 

The Board affirmed the Unemployment Compensation Referee’s (Referee) decision 

denying benefits. The Board concluded that Claimant was ineligible for benefits 

pursuant to Section 402(e) of the Unemployment Compensation Law (Law), 1

relating to willful misconduct. We affirm the Board’s order. 

Claimant filed for unemployment compensation benefits after being 

discharged from her employment as a receptionist for Total Body Pain Management 

(Employer). The Altoona UC Service Center (Service Center) issued a 

determination finding Claimant ineligible for unemployment compensation benefits. 

 

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

§ 802(e). 
2

Claimant appealed the determination, and a Referee conducted a hearing on 

June 26, 2016.

Employer presented the testimony of its owner, Stuart Kauffman 

(Owner), its accountant, Alicia Lecompte (Accountant), and its medical assistant, 

Emily Winterberger (Medical Assistant). (Certified Record (C.R.), Item No. 10 

at 1-2.) Claimant testified on her own behalf and presented the testimony of her 

sister, Cecilia Vassallo (Vassallo), who also worked as an office manager for 

Employer. (Id.)

Owner testified that Claimant worked as a front desk receptionist, and 

Owner terminated her employment on April 25, 2016, for theft and habitual 

tardiness. (Id. at 8.) Owner testified that Claimant’s job duties included, among 

other things, recording patient payments. (Id. at 11.) In order to keep track of these 

payments, Claimant was to record the names of patients that came to receive 

treatment, the cost of their treatment, and whether they paid by cash, check, or credit 

card. (Id.) Claimant recorded these transactions on a payment log. (Id.) When 

patients paid in cash, the money went into a box at Claimant’s desk. (Id. at 19.) At 

times, Owner would take distributions of cash directly from the box. (Id. at 31, 51.) 

These distributions were also recorded on the payment log. (Id.) At the end of each 

day, Claimant was to put the money collected from patients into an envelope and 

give it to Vassallo or put the money in Vassallo’s office if Vassallo was not present. 

(Id. at 57.) 

Regarding Claimant’s tardiness, Owner testified that Claimant’s 

original schedule was to be 8:00 a.m. to 4:00 p.m. on Monday, Tuesday, Thursday, 

and Friday, and her schedule on Wednesday was to be 8:00 a.m. to 7:00 p.m. 

(Id. at 9.) Employer adjusted Claimant’s scheduled hours in order to accommodate 
3

Claimant’s repeated tardiness. (Id.) Owner testified that there is a written policy in 

place regarding tardiness, which provides that employees are to call if they are going 

to be late. (Id. at 10.) Owner did not recall Claimant ever calling to state that she 

was running late. (Id.) Owner further testified that Claimant would arrive late 

multiple times a week, and Owner warned Claimant about her tardiness on multiple 

occasions. (Id. at 8.) 

Regarding Claimant’s theft, Owner testified that he became concerned 

about what appeared to be a shortage of funds going into Employer’s bank account, 

at which time he asked Accountant to investigate the matter. (Id. at 12.) This 

investigation led Accountant and Owner to find that the sum of payments recorded 

on the payment log was more than actual bank deposits. (Id. at 13.) Owner found 

that the patient log would reflect some patients as paying in credit, but those patients 

actually paid in cash. (Id. at 11.) Further, the total deposit from the day would be 

short by the amount of these erroneous recordings. (Id.) Owner determined that 

Claimant or Vassallo was responsible for the missing money. (Id.) Owner 

concluded that Claimant would steal the money from cash-paying patients and 

record their payment as credit on the payment log. (Id.) Regarding this process, 

Owner testified:

We have a sign-in sheet, which shows all of the patients 

who are going to be seen that day. . . . When a patient 

comes in [Claimant] is supposed to put the name of the 

patient down and how they paid; cash, check, or credit. 

What [Claimant] was doing was – is she was putting a 

patient who paid cash $200, let’s say, or it could be more. 

She would then take that money and put it down as a 

credit. So, it appears when I counted the cash at the end 

of the day that all of the cash added up, but falsely known 

to me, or I was unaware for a long time that she was 

putting it down as credit, so – and I never checked the 

credit card machine. I don’t have even the ability to know 
4

how to do that. I assumed that she was being honest and 

she would write it down. Several times I would walk to 

the front of the desk and I would see that a patient wasn’t 

on the list at all, which is a great way to be able to just have 

shown a way that where everything doesn’t need to add up 

because she would never put it on there and she would say 

it was a mistake, she forgot to write them down. This 

happened several times. However, we have multiple 

sheets – sign-in sheets showing that she incorrectly 

marked the sheet down as credit instead of cash, so that 

when I added it up at the end of the day, let’s say she did 

it with three patients [$]200 each that’s $600. It would add 

up correctly as far as the cash because it would go under 

credit, which I never checked. 

(Id.) Based upon Owner and Accountant’s investigation of this matter, Owner 

discharged Claimant for theft and habitual tardiness and proceeded to contact the 

proper authorities regarding the theft of Employer’s money. (Id. at 8, 14.)

Medical Assistant testified generally regarding Claimant’s job function 

and the day of Claimant’s discharge. (Id. at 56-67.) Medical Assistant testified that 

it was Claimant’s responsibility to give Vassallo the cash payments for deposit at 

the end of each day. (Id. at 57.) Further, Medical Assistant testified that Claimant’s 

habitual tardiness resulted in Medical Assistant having to perform Claimant’s job 

until she arrived. (Id. at 60.) Regarding Claimant’s date of discharge, Medical 

Assistant testified that after Claimant learned of her termination, Claimant went into 

Vassallo’s office and began to collect personal items belonging to herself and 

Vassallo. (Id. at 59.) Further, Medical Assistant watched Claimant rip apart a 

patient appointment book and payment log prior to leaving Employer’s premises. 

(Id.)

Accountant testified regarding Claimant’s theft and the investigation 

that led to Claimant’s termination. (Id. at 30-55.) Accountant reviewed the payment 

log maintained by Claimant, the bank deposit slips, and credit card receipts for
5

discrepancies in payment recording. Accountant testified to reviewing deposits from 

the prior six months, but she only discussed seven specific days at the Referee’s 

hearing. (Id. at 33-40.) Accountant testified that April 12, 2016, was the only day 

in the preceding six months wherein the deposits matched the payments from the 

payment log. (Id. at 41.) On April 13, 2016, the payment log documented that credit 

card payments totaled $1,565; however, the credit card deposit showed only $965 in 

credit card payments, totaling a $600 discrepancy. (Id.) Accountant found a $50 

discrepancy in cash deposits for April 14, 2016, in addition to a $75 check that was 

not deposited. (Id. at 39.) On April 15, 2016, there was a $100 discrepancy between 

the credit card charges on the payment log and the credit deposits. (Id. at 38.) On 

April 19, 2016, there was a $200 discrepancy. (Id. at 37.) On April 20, 2016, there 

was a $150 discrepancy, and on April 21, 2016, there was a $310 discrepancy. (Id. 

at 33, 35.) Accountant stated that she could not be sure whether Claimant or Vassallo 

was responsible for the theft. (Id. at 34.) 

Accountant further testified that on the day Employer terminated 

Claimant’s employment, Employer found the patient appointment book torn apart 

and discovered that computer files containing patient documentation had been

erased. (Id. at 44-45.) Employer later called a forensics team to analyze the 

computer. (Id. at 44.)

Claimant’s witness Vassallo testified that she worked as an office 

manager for Employer during the time of Claimant’s employment. (Id. at 84.) 

Vassallo testified that Claimant would count the money at the end of the day to 

ensure the totals were correct. (Id.) At times, Vassallo would have Medical 

Assistant double-check Claimant’s totals. (Id.) Further, Vassallo testified that 

Owner would always check both the cash and credit card totals to ensure they were 
6

correct. (Id.) Regarding the $75 check from April 14, 2016, Vassallo testified that 

it could have been due to a post-dated check received from a patient. (Id. at 89.)

Claimant testified to being responsible for ensuring the money added 

up correctly at the end of the day and denied having ever stolen money from 

Employer. (Id. at 74.) Claimant stated she would count the cash and hand it to 

Vassallo at the end of every day. (Id. at 69.) Claimant attributed the discrepancies 

in credit card charges to technological issues, contending that “glitch[es] in the 

system” led to charges showing up on different days. (Id. at 77-78.) 

Regarding Claimant’s last day of employment, Claimant testified that 

she did not intentionally tear the payment log or patient appointment log. (Id. at 73.) 

Instead, Claimant contended that she might have accidentally torn it when she was 

tearing her notes that she used for recording Employer’s messages. (Id.) Claimant 

further testified that the computer never contained any files containing patient 

information. (Id. at 72.) Finally, although Claimant conceded that she was late for 

work on occasion, she attributed it to traffic and public transportation and further 

stated that she never previously received a warning or any form of discipline 

regarding her tardiness. (Id. at 73-74.) 

Following the hearing, the Referee issued a decision, in which she made 

the following relevant findings:

1. The claimant was last employed as a full-time Front 

Desk Receptionist with the employer from July 15, 2013 

until April 25, 2016 at a final rate of pay of $17.50 per 

hour. 

2. The claimant’s sister also worked for the employer 

as an Office Manager.

3. The employer found out that there were insufficient 

funds in the bank although there should have been a 

sufficient balance to make payroll.
7

4. The employer spoke with the accountant regarding 

the monies.

5. The employer found out that the deposits made by 

the Office Manager and the log sheets did not match. 

6. An investigation was conducted. 

7. At the end of the day, the claimant would hand over 

the cash and other receipts to the Office Manager. 

8. The employer found out that the credit logs did not 

match up to what was being put through on credit cards.

9. The claimant would log the payments as credit card 

payments, but take the cash. 

10. The claimant found out that she was being 

suspected of stealing. 

11. On April 25, 2016, the claimant erased all the 

patients’ files from the computer, and tore up and removed 

daily log sheets and the appointment book. 

12. The employer filed a complaint with [the] District 

Attorney’s Office, and informed the police. 

13. The employer also had to call Forensics as the 

claimant had erased the data from the computers. 

14. The claimant was habitually late, which required the 

medical assistant to assist at the front desk. 

15. On April 25, 2016, the employer discharged the 

claimant for theft and habitual lateness. 

(C.R., Item No. 11.) 

The Referee concluded that Claimant was ineligible for benefits under 

Section 402(e) of the Law, relating to willful misconduct, because she engaged in

theft and habitual tardiness. (Id.) The Referee made credibility determinations in 

favor of Employer, specifically discrediting Claimant’s testimony regarding the 

missing money. (Id.) 
8

Claimant appealed the Referee’s decision to the Board. The Board 

affirmed the decision and adopted and incorporated the Referee’s findings of fact 

and conclusions of law. (C.R., Item No. 16.) 

On appeal,2 Claimant first argues that the Board capriciously 

disregarded evidence presented at the hearing.3 Next, Claimant argues that 

substantial evidence does not exist to support the Board’s findings of fact.4 

Claimant’s final argument is that the Board erred by determining Claimant’s actions 

constituted willful misconduct. 

First, we will address Claimant’s argument that the Board capriciously 

disregarded relevant evidence. Specifically, Claimant alleges that the Board 

capriciously disregarded (1) a text message in which Owner told Vassallo that he 

“was not accusing anyone of theft,”5(2) Claimant testifying to not stealing the 

 

2 This Court’s standard of review is limited to determining whether constitutional rights 

were violated, whether an error of law was committed, or whether necessary findings of fact are 

supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. 

C.S. § 704. Review for capricious disregard of material evidence is an appropriate component of 

appellate review in every case in which such question is properly brought before the Court. Leon 

E. Wintermeyer, Inc. v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 (Pa. 2002). 

3

In her brief, Claimant also contends that the Referee exhibited bias in favor of Employer. 

(Pet’r Br. at 14.) This contention, however, is directed toward the Referee’s and Board’s alleged

disregard of evidence presented at the hearing. Accordingly, we will construe Claimant’s 

argument to be that the Board capriciously disregarded evidence. 

4

In her petition for review, Claimant challenges all but two of the Board’s findings of fact. 

In her brief, however, Claimant does not advance an argument with respect to many of the findings 

of fact. Because Claimant did not develop arguments relating to these issues in her brief, the 

challenges are waived. See Van Duser v. Unemployment Comp. Bd. of Review, 642 A.2d 544, 548 

n.3 (Pa. Cmwlth. 1994). Accordingly, this Court will analyze whether substantial evidence exists 

to support the findings of fact for which Claimant has advanced an argument. 

5 On cross-examination of Owner, Claimant’s counsel introduced evidence in the form of 

a screenshot of a text message from Owner to Vassallo. (C.R., Item No. 10 at 20-21.) The 
9

money, and (3) Claimant’s testimony that she never received a prior warning 

regarding her tardiness. (Pet’r Br. at 18.) This Court has previously explained:

When determining whether the Board capriciously 

disregarded the evidence, the Court must decide if the 

Board deliberately disregarded competent evidence that a 

person of ordinary intelligence could not conceivably have 

avoided in reaching a particular result, or stated another 

way, if the Board willfully or deliberately ignored 

evidence that any reasonable person would have 

considered to be important. 

Jackson v. Unemployment Comp. Bd. of Review, 933 A.2d 155, 156 n.4 

(Pa. Cmwlth. 2007). We have characterized capricious disregard of evidence as “a 

deliberate and baseless disregard of apparently reliable evidence.” Taliaferro v. 

Darby Twp. Zoning Hearing Bd., 873 A.2d 807, 814 (Pa. Cmwlth. 2004), appeal 

denied, 887 A.2d 1243 (Pa. 2005). 

In an unemployment case, it is well settled that the Board is the ultimate 

factfinder and is, therefore, entitled to make its own determinations as to witness 

credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 

501 A.2d 1383, 1388 (Pa. 1985). The Board is also empowered to resolve conflicts 

 

substance of the text conversation preceding the screenshot text message is unknown. Owner 

described the prior text message as Vassallo accusing Owner of accusing Vassallo of stealing. (Id.

at 23.) The entirety of the screenshot text message provided:

Don’t threaten me. I did not make any accusations about anyone stealing anything. 

Don’t know who is telling you these things but your information is incorrect. And 

as far as the [Drug Enforcement Agency] and the [Internal Revenue Service] or any 

other organization with three letter words [sic] you’re just a disgruntled employee. 

You were in charge of keeping track of all monies. Whether or not any money was 

taken or not taken you were to account for it and give that information to 

[Accountant].

(C.R., Item No. 11 at Claimant’s “Ex. 1.”) Claimant argues that this message is proof that Owner 

never accused Claimant of theft and both the Referee and the Board capriciously disregarded this 

evidence in determining that Claimant engaged in theft from Employer. 
10

in the evidence. DeRiggi v. Unemployment Comp Bd. of Review, 845 A.2d 253, 255 

(Pa. Cmwlth. 2004). “Questions of credibility and resolution of evidentiary conflicts 

are within the sound discretion of the Board, and are not subject to re-evaluation on 

judicial review.” Peak, 501 A.2d at 1388. In addition, the Board is not required to 

accept even uncontroverted testimony as true in making its determinations. Edelman 

v. Unemployment Comp. Bd. of Review, 310 A.2d 707, 708 (Pa. Cmwlth. 1973). 

In the instant case, Employer and Claimant both presented conflicting 

testimony regarding the text message from Owner to Vassallo, Claimant’s theft of 

Employer’s funds, and Claimant’s tardiness. As to the screenshot text message, the 

Referee explained during the hearing that the text was out of context and that he 

would have preferred to see the entire text conversation. (C.R., Item No. 10 at 21-

22.) The Referee agreed to admit the screenshot text into the record, but he stated 

that he would determine later what weight to afford it. It appears that the Referee 

and Board chose to give the screenshot text between Owner and Vassallo little, if 

any, weight when determining the circumstances surrounding Employer’s 

termination of Claimant’s employment. Determinations as to the weight to be given 

to evidence is within the purview of the factfinder. Peak, 501 A.2d at 1388. The 

Board reviewed all of the testimony and found Employer’s witnesses’ testimony to 

be more credible than Claimant’s. The Board thus resolved all conflicts in testimony 

in favor of Employer. The Board has no obligation to accept Claimant’s version of 

the facts. Arrington v. Unemployment Comp. Bd. of Review, 413 A.2d 790, 791 

(Pa. Cmwlth. 1980). The Board did not capriciously disregard relevant evidence 

merely because it chose not to accept Claimant’s version of events regarding her 

tardiness and theft. Accordingly, we conclude that the Board did not capriciously 

disregard evidence. 
11

Next, we address Claimant’s argument that the Board’s findings of fact 

are unsupported by substantial evidence. As previously mentioned, we will only 

analyze those findings of fact for which Claimant has developed an argument. In 

her brief, Claimant advanced arguments challenging the Board’s findings of fact 

numbers 9, 11, and 14. We conclude that Claimant’s challenges to these findings 

are without merit. 

Courts have defined substantial evidence as “relevant evidence upon 

which a reasonable mind could base a conclusion.” Rohde v. Unemployment Comp. 

Bd. of Review, 28 A.3d 237, 242 (Pa. Cmwlth. 2011). In evaluating the record to 

determine whether there is substantial evidence to support the adjudicatory findings, 

this Court examines the testimony in the light most favorable to the prevailing party, 

giving that party the benefit of any inferences that can logically and reasonably be 

drawn from the evidence. Id. 

Regarding the Board’s finding of fact number 9—that Claimant would 

log the payments as credit and take the cash—Employer presented the testimony of 

Owner, who credibly testified that it was Claimant’s responsibility to record 

patients’ payments on the patient log. (C.R., Item No. 10 at 11.) Accountant also 

testified that the discrepancies in the deposits were due to payments recorded as 

“credit” although the patient paid in cash. (Id. at 33-40.) Further, Claimant 

conceded that she was unable to provide an explanation for all of the discrepancies. 

(Id. at 76.) Viewing the evidence in the light most favorable to the prevailing party, 

we conclude that substantial evidence exists to support the Board’s finding of fact 

number 9.

As for finding of fact number 11—that Claimant erased computer files 

and destroyed the appointment book—Accountant, Medical Assistant, and Claimant 
12

herself testified to tearing the appointment book, although Claimant contends it was 

an accident. (Id. at 73.) Accountant testified that on the day Employer terminated 

Claimant’s employment, computer files containing patient information were all 

erased, prompting Employer to reach out to a forensics team in an attempt to recover 

the data. (Id. at 44.) Accountant also testified that the deletion of these files would 

not be attributable to a “computer glitch.” (Id.) Although Claimant provided 

contrary testimony, asserting that the computer never contained any patient files, the 

Board found that Claimant deleted Employer’s computer files. As such, our review 

of the record demonstrates that there is substantial evidence to support this finding. 

Turning to finding of fact 14—that Claimant was habitually late, which 

required Medical Assistant to perform Claimant’s job until she arrived—we also find 

Claimant’s challenge unpersuasive. Owner, Medical Assistant, and Claimant herself 

testified that Claimant was late on multiple occasions. (Id. at 9, 60, and 74.) Further, 

Medical Assistant testified that she would handle Claimant’s duties until Claimant 

came to work. (Id. at 60.) Accordingly, substantial evidence exists to support this 

finding.

We now will address Claimant’s final argument that the Board erred in 

concluding that Claimant engaged in willful misconduct. Whether or not an 

employee’s actions amount to willful misconduct is a question of law subject to 

review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 

425 A.2d 1203, 1205 (Pa. Cmwlth. 1981).

Section 402(e) of the Law provides, in part, that an employee shall be 

ineligible for compensation for any week in which “his unemployment is due to his 

discharge or temporary suspension from work for willful misconduct connected with 

his work.” The employer bears the burden of proving that the claimant’s 
13

unemployment is due to the claimant’s willful misconduct. Walsh v. Unemployment 

Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The term “willful 

misconduct” is not defined by statute. The courts, however, have defined “willful 

misconduct” as:

(a) wanton or willful disregard of employer’s interests, (b) 

deliberate violation of the employer’s rules, (c) disregard 

of standards of behavior which an employer can rightfully 

expect of an employee, or (d) negligence indicating an 

intentional disregard of the employer’s interest or an 

employee’s duties and obligations. 

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).

Claimant’s entire argument on this issue is predicated on her version of 

the facts, i.e., that she did not steal money from Employer and that she was never 

warned regarding her habitual tardiness. The Board, however, did not accept 

Claimant’s version. Instead, it found that Claimant both was habitually late and was 

responsible for Employer’s missing funds. To the extent that Claimant argues there 

is no direct evidence of Claimant’s theft, we have previously held that an employer 

may rely solely on circumstantial evidence to establish a claimant’s actions 

constituted theft. Ford v. Unemployment Comp. Bd. of Review, 504 A.2d 427, 428 

(Pa. Cmwlth. 1986), appeal denied, 521 A.2d 935 (Pa. 1987). 

Theft and habitual tardiness are examples of conduct this Court has 

previously held to constitute willful misconduct. See Unemployment Comp. Bd. of 

Review v. Vereen, 370 A.2d 1228, 1231 (Pa. Cmwlth. 1977) (holding one isolated 

instance of theft is sufficient to constitute willful misconduct); see also 

Unemployment Comp. Bd. of Review v. Glenn, 350 A.2d 890, 892 

(Pa. Cmwlth. 1976) (holding habitual tardiness is adequate grounds for a finding of 
14

willful misconduct). The Board did not err, therefore, in concluding that Claimant’s 

actions were tantamount to willful misconduct. 

Accordingly, we affirm the order of the Board. 

 

 P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine A. Diamond, :

Petitioner :

:

v. : No. 1507 C.D. 2016

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 17th day of November, 2017, the order of the 

Unemployment Compensation Board of Review is hereby AFFIRMED.

 

 P. KEVIN BROBSON, Judge