IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Custom Window Extrusions, Inc.,
:

Petitioner :

v.

: No. 1400 C.D. 2004

:
Unemployment Compensation
: Submitted: January 28, 2005
Board of Review,

:

Respondent
:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DAN
PELLEGRINI, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE KELLEY

FILED: February 23, 2005

Custom Window Extrusions, Inc. (Employer) petitions for review of
the order of the Unemployment Compensation Board of Review (Board) reversing
the decision of a Referee, and determining that Robert E. Penman (Claimant) is
eligible for compensation benefits pursuant to the provisions of the Unemployment
Compensation Law (Law).1 We affirm.

Claimant filed a claim for benefits with the Duquesne UC Service
Center upon the termination of his employment as a shooter and die tuner with
Employer. The Service Center representative concluded that Claimant had been

1 Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. §§
751 914.

discharged for reasons that constitute willful misconduct under Section 402(e) of
the Law.2 As a result, unemployment compensation benefits were denied.

Claimant appealed this determination and, following a hearing, the
Referee issued a decision on September 11, 2003 disposing of Claimant's appeal.
In the decision, the Referee determined that Claimant had not filed a timely appeal
from the Service Center's determination. As a result, the Referee issued an order
dismissing Claimant's appeal.

On September 23, 2003, Claimant appealed the Referee's decision to
the Board. On November 21, 2003, upon review of the record and all of the
evidence, arguments and briefs that had been submitted, the Board issued an order
affirming the Referee's decision.

On December 22, 2002, Claimant filed a petition for review in this
Court from the Board's order. On January 13, 2004, the Board filed an application
for remand of the matter for the purpose of conducting hearings on the merits. On
January 14, 2004, upon agreement of the parties, this Court issued an order
remanding the case to the Board for further hearings in the matter.

On March 10, 2004 and April 27, 2004, hearings were conducted
before the Referee for the introduction of testimony and evidence. The record was

2 Section 402(e) of the Law provides, in pertinent part:

An employe shall be ineligible for compensation for any
week-
* * *

(e)
In which his unemployment is due to his
discharge or temporary suspension from work for willful
misconduct connected with his work, irrespective of
whether or not such work is "employment" as defined in
this act.
43 P.S. § 802(e).
2.

transmitted to the Board, and on June 7, the Board issued a decision and order
disposing of the matter in which it made the following relevant findings of fact:
(1) Employer has two shooters and die tuners and they rotate working the daylight
shift, from 7:30 a.m. to 4:00 p.m., and the second shift from 3:30 p.m. to midnight;
(2) Claimant was required to clock out using a swipe card at the end of his shift;
(3) Employer has a policy, which Claimant was or should have been aware of,
against timecard fraud and dishonesty; (4) on Tuesday, June 17, 2003, Claimant
had forgotten to punch out but returned to work to give a co-worker a ride home,
so he punched out at that time so the employer's records did not show him as being
there over 20 hours; (5) on Wednesday June 18, 2003 Claimant again forgot to
punch out when he left work at approximately 4:00 p.m.; (6) Claimant returned to
work later that day, did some work and punched out so the Employer's log did not
show him there over 20 hours; (7) on June 19, 2003 Claimant told his immediate
supervisor not to use the hours on his log but to pay him for 8 hours for the two
prior days; (8) Claimant has Narcolepsy, which Employer was aware of, and was
on medication; (9) when Claimant was not taking his medication his memory
would be affected, which is part of his sleep disorder; (10) Claimant was not on his
medication during the week including June 17 and June 18, 2003 because he was
changing his medication; and (11) Employer discharged Claimant, in writing, for
timecard fraud for June 17 and June 18 and unauthorized absence from building
between 4:16 p.m. and 5:50 p.m. on June 17 and between 4:13 p.m. and 6:22 p.m.
on June 18, 2003. Board Decision at 2-3.

Based on the foregoing, the Board concluded that Employer had failed
to sustain its burden of proving willful misconduct precluding the award of
benefits under Section 402(e) of the Law. Specifically, the Board determined:
3.

The claimant was discharged for timecard fraud and for
unauthorized absence from the building. The claimant
was not absent from the building because the hours he
was alleged to be absent were after his shift was over.
The claimant was also discharged for timecard fraud.
The employer's policy, which the claimant was or should
have been aware of, allows for the discharge of an
employee for timecard fraud. The claimant left work at
the end of his shift on June 17, 2003 and June 18, 2003
without punching out. The Board finds the claimant's
testimony credible that he forgot to punch out on those
days and that he did not intentionally attempt to falsify
his timecard. The Board also finds the claimant's
testimony credible that he was not on his medication for
his Narcolepsy disorder and that it affected his memory.
The claimant also credibly testified regarding his return
to the employer's premises on those dates and that he
told his supervisor not to go by his timecard but to pay
him for a normal 8 hour day for both days. Therefore,
the Board concludes that the claimant did not commit
willful misconduct. Accordingly, the claimant is eligible
for benefits under Section 402(e) of the Law.
Board Decision at 4. Accordingly, the Board issued an order reversing the
Referee's decision and granting Claimant compensation benefits. Employer then
filed the instant petition for review.3

In this appeal, Employer claims4 that the Board erred in failing to
determine that Claimant was ineligible for benefits under Section 402(e) of the

3 This Court's scope of review in an unemployment compensation matter is limited to a
determination of whether constitutional rights were violated, errors of law were committed, or
essential findings of fact are not supported by substantial evidence. Mansberger v.
Unemployment Compensation Board of Review, 785 A.2d 126 (Pa. Cmwlth. 2001). Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Wheelock Hatchery, Inc. v. Unemployment Compensation Board of Review, 648
A.2d 103 (Pa. Cmwlth. 1994).
4 In the interest of clarity, we consolidate the claims raised by Employer in this appeal.
4.

Law. Specifically, Employer asserts that the Board's findings of fact in this matter
are not supported by substantial evidence. The facts of this case, as outlined by
Employer, clearly demonstrate that Claimant engaged in willful misconduct.
Employer contends that, as a result, the Board erred in determining that it had not
met its burden of proof, and in failing to deny benefits pursuant to Section 402(e)
of the Law.

It is well settled that the Board is the ultimate finder of fact in
unemployment compensation proceedings. Peak v. Unemployment Compensation
Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985); Chamoun v. Unemployment
Compensation Board of Review, 542 A.2d 207 (Pa. Cmwlth. 1988). Thus, 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. Peak;
Chamoun. The Board's findings of fact are conclusive on appeal so long as the
record, taken as a whole, contains substantial evidence to support those findings.
Penflex, Inc. v. Bryson, 506 Pa. 274, 485 A.2d 359 (1984). Our duty as an
appellate court is to examine the evidence in a light most favorable to the party in
whose favor the Board has found, giving that party the benefit of all inferences that
can logically and reasonably be drawn from the evidence to see if substantial
evidence for the Board's conclusions exists. Id.

Our review of the certified record in this case demonstrates that there
is substantial evidence supporting the Board's determination that Claimant did not,
in fact, attempt to commit timecard fraud in violation of Employer's policy. See
N.T.5 at 98-102, 105-106, 110-111. As noted above, the Board was free to credit

5 "N.T." refers to the transcript of the hearings conducted before the Referee on March
10, 2004 and April 27, 2004..
5.

Claimant's testimony with regard to his actions on June 17, 18 and 19, 2003, and
to discredit the testimony and evidence to the contrary. Peak; Wright. In addition,
those findings are conclusive on appeal as they are supported by the foregoing
substantial evidence. Penflex, Inc.

Moreover, the fact that the evidence cited by Employer contradicts the
Board's determinations with respect to Claimant's actions does not compel the
conclusion that the Board's determinations in this regard should be reversed. See,
e.g., Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d
1106, 1108-1109 (Pa. Cmwlth. 1994) ("[T]he fact that Employer may have
produced witnesses who gave a different version of events, or that Employer might
view the testimony differently than the Board, is not grounds for reversal if
substantial evidence supports the Board's Findings.").

In addition, as noted above, pursuant to Section 402(e) of the Law, an
employee is ineligible for unemployment compensation benefits when he has been
discharged from work for willful misconduct connected with his work. Guthrie v.
Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth.
1999). The burden of proving willful misconduct rests with the employer. Id.
Whether an employee's conduct constitutes willful misconduct is a question of law
subject to this Court's review. Id.

Although willful misconduct is not defined by statute, it has been
described as: (1) the wanton and willful disregard of the employer's interests; (2)
the deliberate violation of rules; (3) the disregard of standards of behavior that an
employer can rightfully expect from his employee; or (4) negligence which
manifests culpability, wrongful intent, evil design, or intentional and substantial
disregard for the employer's interests or the employee's duties and obligations. Id.
6.

(citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation
Board of Review, 309 A.2d 165, 168-169 (Pa. Cmwlth. 1973)).

Thus, a violation of an employer's work rules and policies may
constitute willful misconduct. Id. An employer must establish the existence of the
work rule and its violation by the employee. Id. If the employer proves the
existence of the rule, the reasonableness of the rule, and the fact of its violation, the
burden of proof shifts to the employee to prove that he had good cause for his
actions. Id. The employee establishes good cause where his actions are justified
or reasonable under the circumstances. Id.

Finally, an equally germane consideration in a willful misconduct case
is not whether the employer had the right to discharge the employee for the
conduct in question, but whether the Commonwealth is justified in reinforcing that
decision by denying benefits under the Law based upon the complained of conduct.
Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351
A.2d 631 (1976).

As noted by the Board in this case:
[T]he Board finds the claimant's testimony credible that
he forgot to punch out on [June 17 and 18, 2003] and that
he did not intentionally attempt to falsify his timecard.
The Board also finds the claimant's testimony credible
that he was not on his medication for his Narcolepsy
disorder and that it affected his memory. The claimant
also credibly testified regarding his return to the
employer's premises on those dates and that he told his
supervisor not to go by his timecard but to pay him for a
normal 8 hour day for both days....

7.

Board Opinion at 4. We discern no error in the Board's determination that
Claimant's conduct in this case does not rise to the level of willful misconduct,
thereby precluding the award of benefits under Section 402(e) of the Law.6

Accordingly, the order of the Board is affirmed.

_________________________________

JAMES R. KELLEY, Senior Judge

6 See, e.g., Nolan v. Unemployment Compensation Board of Review, 425 A.2d 1203,
1206 (Pa. Cmwlth. 1981) ("[T]he record reveals that the other employees who allegedly falsified
their records did so unintentionally, and such unintentional, de minimis incidents of misconduct
do not constitute willful misconduct. Miller v. Unemployment Compensation Board of Review,
[415 A.2d 454 (Pa. Cmwlth. 1980)]; Williams v. Unemployment Compensation Board of Review,
[380 A.2d 932 (Pa. Cmwlth. 1977)]; Phillips v. Unemployment Compensation Board of Review,
384 A.2d 1037, 1038 (Pa. Cmwlth. 1978) ("[I]t is true that the inadvertent entry of an incorrect
notation upon a time card does not constitute willful misconduct. Century Apartments,
Incorporated, t/a The Bigelow Apartment Hotel v. Unemployment Compensation Board of
Review, [373 A.2d 1191 (Pa. Cmwlth. 1977)].") (emphasis in original); Century Apartments,
Incorporated, 373 A.2d at 1192 ("'The deliberate violation of rules' is indeed willful misconduct.
However, [the claimant] testified not only that her breach of the rule was inadvertent but that she
believed the rule was not applicable to her because, unlike the other employes, she had regularly
scheduled hours. The Board's finding on sufficient evidence that [the claimant] would have
corrected the time sheet suggests a negligent, not a deliberate, violation of the employer's rules
concerning the time sheets.") (citation omitted).
8.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Custom Window Extrusions, Inc.,
:

Petitioner :

:

v.

: No. 1400 C.D. 2004

:
Unemployment Compensation
:
Board of Review,

:

Respondent
:

O R D E R

AND NOW, this 23rd day of February, 2005, the order of the
Unemployment Compensation Board of Review, dated June 7, 2004 at No. B-
419242-A, is AFFIRMED.

_________________________________

JAMES R. KELLEY, Senior Judge