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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DIANA A. BURGER,
:
Petitioner
::
v.
:
NO. 1014 C.D. 2000
:
UNEMPLOYMENT COMPENSATION
:
BOARD OF REVIEW,
:
Respondent
:
O R D E R
AND NOW, this 17th day of July, 2001, upon consideration of the
Application to Report Unreported Opinion filed by Intervenor Garvey Manor, this
Court's opinion filed May 18, 2001, shall be designated OPINION instead of
MEMORANDUM OPINION and shall be reported.
______________________________
DORIS A. SMITH, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
DIANA A. BURGER,
:
Petitioner
::
v.
:
NO. 1014 C.D. 2000
:
SUBMITTED: December 6, 2000
UNEMPLOYMENT COMPENSATION:
BOARD OF REVIEW,
:
Respondent
:
BEFORE: HONORABLE JOSEPH T. DOYLE, President Judge
HONORABLE JAMES GARDNER COLINS, Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE DORIS A. SMITH, Judge
HONORABLE DAN PELLEGRINI, Judge
HONORABLE JIM FLAHERTY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
OPINION BY JUDGE SMITH
FILED: May 18, 2001

Diana A. Burger (Burger) petitions for review of an order of the
Unemployment Compensation Board of Review (Board) that affirmed the decision
of a referee denying her claim for unemployment compensation benefits. Burger
states the issue as whether an employee's off-the-job drug activity will support a
finding of willful misconduct when the drug activity does not violate the
employer's drug policy and the activity is not connected to the employee's work.
Garvey Manor (Employer) employed Burger as a certified nurse's aide
from March 24, 1994 until November 9, 1999. On that date, Burger was
summoned to a meeting with Joann Kasun, the Director of Human Services for
Employer, and Mary Ann Sirko, Director of Nursing Services. Burger had
2

sustained a work-related injury and had received treatment from her personal
physician. Burger's physician sent Employer a bill with an attached medical
history in which Burger admitted to using marijuana daily and using prescription
medications illegally. Kasun and Sirko confronted Burger with the allegation of
illegal drug use and then showed her the medical history. Kasun stated that Burger
admitted using marijuana on a daily basis and stated further that she used her
daughter's pain prescriptions but did not use prescriptions off the streets, as the
report indicated.
Employer had distributed to all employees a handbook with a partial
listing of behavior considered unacceptable in the workplace, including reporting
to work or working under the influence of alcohol or illegal drugs, or the improper
use, causing impairment, of prescription medication and violation of safety or
health rules. Kasun testified that Burger, as a certified nurse's aide, was in constant
contact with residents and that she was terminated because Employer could not be
sure that she would be able to care safely for residents. Burger testified that she
did use marijuana on a daily basis, in the evening, but that she never reported to
work directly after using marijuana.
The referee denied Burger's application for benefits under Section
402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e), which provides
that a claimant shall be ineligible for benefits for any week in which his or her
unemployment is due to "discharge or temporary suspension from work for willful
misconduct connected with [the] work." See Broadus v. Unemployment
Compensation Board of Review, 721 A.2d 70 (Pa. Cmwlth. 1998). The referee
stated that nothing in the record established that Burger's admitted drug use
3

affected her job performance. Therefore it did not fall under Employer's policy.
Nevertheless, the referee concluded that under the general definition of willful
misconduct, Burger's conduct was behavior that an employer should not have to
accept from an employee. The Board affirmed. The Court's review of the Board's
order is limited to determining whether there was a constitutional violation or an
error of law and whether the necessary findings of the Board are supported by
substantial evidence in the record. Broadus.
Whether employee conduct constitutes willful misconduct is a
question of law fully reviewable by this Court. Gwynedd Square Center v.
Unemployment Compensation Board of Review, 656 A.2d 562 (Pa. Cmwlth. 1995).
The employer bears the burden of proving willful misconduct. Broadus. Burger
begins by quoting the definition of willful misconduct in Gillins v. Unemployment
Compensation Board of Review, 534 Pa. 590, 633 A.2d 1150 (1993). She cites
Webb v. Unemployment Compensation Board of Review, 670 A.2d 1212, 1216 (Pa.
Cmwlth. 1996), for the principle that Section 402(e) requires "that willful
misconduct be connected with a claimant's work." She notes that the Court stated
in Gallagher v. Unemployment Compensation Board of Review, 388 A.2d 785, 787
(1978), that "[a]n employer may require that his employees be exemplary citizens
off the job as well as on. He may discharge them for failing to live up to this
standard.... However, acting in a manner meriting the employer's disapproval does
not disqualify an employee from receiving unemployment compensation upon his
discharge unless his dereliction is connected with his work."
Burger points out that in Webb the Court held that the connection-to-
work requirement meant that a claimant's off-the-job arrest for driving under the
influence of alcohol did not constitute willful misconduct under Section 402(e) of
4

the Law, where the employer's work rule against an employee's using alcohol for
five years after rehabilitation was deemed to be unreasonable. She contends that
Webb controls and that it would not permit a finding of willful misconduct. In
addition, Burger notes that this case was decided under Section 402(e), and she
asserts that Section 3, 43 P.S. §752, stating that compensation is intended to assist
"persons unemployed through no fault of their own," therefore does not apply. If
the Court deems Section 3 to be applicable, Burger contends that Employer has
failed to satisfy its burden of proving that her behavior "directly reflects upon [her]
ability to perform [her] assigned duties." Mills v. Unemployment Compensation
Board of Review, 539 A.2d 956, 957 (Pa. Cmwlth. 1988).
Employer responds that, because Burger habitually used marijuana at
night and abused prescription painkillers, she could have harmed patients, and
therefore she subjected Employer to potential liability in disregard of Employer's
interests and of the standard of behavior that it had a right to expect. Employer
compares this case to Derry v. Unemployment Compensation Board of Review, 693
A.2d 622 (Pa. Cmwlth. 1997), where the Court affirmed the denial of benefits to a
worker with troubled adolescents who violated a known employer policy against
illegal drug use, even away from work, thereby undermining his own function as a
role model and possibly the public's confidence in the employer's programs.
The Court agrees that Burger's conduct constituted willful misconduct
connected with her work. First, Burger admitted to using marijuana at home in the
evening every day, and she agreed that she should not be working when she was
under its influence -- she denied ever reporting to work in such a condition. In
addition, she admitted to having a problem in regard to using painkillers that were
not prescribed for her, for which she thought Employer should have given her
5

rehabilitation rather than termination. N.T. at pp. 7, 9. The Court agrees that these
admissions gave rise to a perfectly legitimate concern on Employer's part that
Burger might well attempt to work in a sufficiently impaired condition to create
safety problems. Burger's causing this concern was conduct connected to her work
in violation of the standards that Employer had a right to expect.
In the alternative, the Supreme Court has stated that the policy of
Section 3 of the Law, that benefits be reserved for those unemployed through no
fault of their own, must be considered when construing all other sections of the
Law. Gillins. The Supreme Court in Gillins adopted the test stated by this Court
in Unemployment Compensation Board of Review v. Derk, 353 A.2d 915 (Pa.
Cmwlth. 1976), for analyzing cases involving criminal conduct away from the
workplace: an employer must prove (1) that the conduct of the claimant leading to
the arrest was inconsistent with acceptable standards of behavior and (2) that the
claimant's conduct directly reflects upon his or her ability to perform assigned
duties. In the present case, although there was no arrest, Burger's admitted conduct
is inconsistent with acceptable standards of behavior. The daily use of illegal
drugs involved here, unlike some other forms of criminal activity, does reflect
directly upon Burger's ability to perform her duties. Therefore, the order of the
Board is affirmed.

DORIS A. SMITH, Judge
6