           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Great Valley Publishing,                        :
                                                : No. 49 C.D. 2015
                              Petitioner        : Submitted: January 15, 2016
                                                :
                      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: March 8, 2016


               Great Valley Publishing Company, Inc., (Employer) petitions for
review of the December 19, 2014 order of the Unemployment Compensation
Board of Review (Board), which reversed a referee’s determination and held that
Stephanie A. Fanfera (Claimant) was not ineligible for 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). Section 402(e) 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. Willful misconduct has been defined as including:
wanton and willful disregard of the employer’s interests; a deliberate violation of the employer’s
rules; a disregard of the standards of behavior that the employer rightfully can expect from its
employees; and negligence that manifests culpability, wrongful intent or evil design, or an
intentional and substantial disregard of the employer’s interests or the employee’s duties and
(Footnote continued on next page…)
             Claimant worked for Employer as a full-time account executive from
November 5, 2012 through May 30, 2014, earning $30,000.00 per year, plus
commission. Employer discharged Claimant for violating its policy governing
employees’ personal use of computers and internet service. The local service
center determined that Claimant was ineligible for benefits under Section 402(e).
Claimant appealed, and a referee held a hearing on July 24, 2014.
             Mara Honicker (Honicker), Employer’s vice president, testified that
Employer has a policy prohibiting employees’ personal use of computers and
internet service without advance permission. She stated that Claimant signed
Employer’s policy and procedures manual, which includes this policy.
Reproduced Record (R.R.) at 33a-34a. Honicker explained that employees are
allowed to use computers for personal reasons if they ask ahead of time, but, to her
knowledge, Claimant never asked for permission. R.R. at 36a.
             Honicker testified that discipline for an employee’s violation of the
internet use policy can include termination: “We have a zero tolerance policy that
we can opt to enforce. We could, depending on the level of abuse, we could also
issue a written warning.” R.R. at 36a. Although Honicker repeatedly referred to
the policy as a “zero tolerance” policy, she clarified that Employer does not
automatically discharge an employee for using the computer or internet for
personal reasons but can exercise discretion to terminate an employee if the policy
is abused. R.R. at 37a-38a.



(continued…)

obligations. Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 632
(Pa. 1976).


                                         2
             Honicker stated that Employer monitors employees’ computer use by
reviewing employees’ computer history and by observing their computer screens
during the workday. R.R. at 34a. She said that on occasions when misuse was
observed, Employer would hold meetings or have conversations to remind
employees of the policy. Honicker acknowledged that compliance with the policy
was an ongoing concern because employees’ regular duties frequently required
them to use the internet to visit outside sites. R.R. at 38a.
             Peter Burke (Burke), Employer’s associate sales manager, confirmed
Honicker’s testimony that employees are required to get permission before using
company computers and internet service for personal reasons, even during breaks
or lunch. R.R. at 46a. Burke added that Employer did not have a norm or accepted
level of personal use and that disciplinary actions were taken on a case by case
basis. R.R. at 54a.
             Burke testified that he terminated Claimant for “egregious internet
usage.” R.R. at 43a. He defined “egregious” as taking up “a vast majority of the
day.” R.R. at 48a. Burke said that on the Friday afternoon before Claimant’s
discharge, he saw her shopping on Amazon and told her that “we needed to get
back on the phones.” R.R. at 43a. He stated that when he reviewed reports later
that day, he saw that Claimant had again used the internet for personal reasons;
after he consulted with Honicker and another individual, a decision was made to
terminate Claimant’s employment. R.R. at 43a-45a.
             Burke also stated that he had seen Claimant looking at an Equifax
credit report. He acknowledged that he sometimes observes other employees
doing the same thing and that Employer’s response depends on how excessive the
employee’s internet usage is. R.R. at 47a. Referencing a record of Claimant’s


                                           3
internet use on her last day of work, Burke conceded that, with the exception of
5:00 p.m. entries, he could not identify internet usage that preceded or followed his
conversation with Claimant. R.R. at 50a.
             Claimant testified that Burke did not advise her that she was
discharged for violating Employer’s computer usage policy but said only that she
was no longer needed.        R.R. at 57a-58a.      Claimant stated that she received
Employer’s handbook and knew of its policy prohibiting employees’ personal use
of computers and internet service. R.R. 65a. According to Claimant, however,
employees commonly used Employer’s computers and internet for personal
purposes, and Employer was aware of this but did not consistently enforce its
policy. R.R. at 60a. Claimant noted that Burke would walk around the work area
and employees made no effort to hide their screens from his view. R.R. at 61a.
             The referee found that: Employer’s policy prohibits the use of
computers or internet for personal reasons without prior approval; Employer was
aware that employees were using the internet for personal reasons; and Employer
took no action unless the use was excessive. While noting Employer’s inconsistent
enforcement of its computer and internet policy, the referee found that Claimant
violated that policy without good cause. Accordingly, the referee affirmed the
local service center’s decision, and Claimant appealed to the Board.
             The Board found as follows:2


      2
         In unemployment compensation proceedings, the Board is the ultimate fact-finder,
empowered to determine the credibility of witnesses and resolve conflicts in evidence; the
Board’s findings are conclusive on appeal where they are supported by substantial evidence.
Curran v. Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth.
2000). Substantial evidence is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. American General Life and Accident Insurance
(Footnote continued on next page…)
                                            4
             1. [Employer] employed the claimant from November 5,
             2012, through May 30, 2014, finally as a full-time
             account executive earning $30,000.00 per year, plus
             commission.

             2. The claimant knew that the employer had a policy
             prohibiting using its computers and Internet for personal
             purposes.

             3. The employer knew that employees, including the
             claimant, commonly used its computers and Internet for
             personal purposes, but did not consistently enforce its
             policy.

             4. The claimant typically used the employer’s computer
             and Internet for personal purposes about twenty minutes
             per day, sometimes instead of taking a smoking break.

             5. Around 3:00 p.m. on May 30, 2014, the employer’s
             associate sales manager saw the claimant using
             Amazon.com and redirected her to use her phone to meet
             deadlines instead of visiting Amazon.com.

             6. The claimant returned to work, but used the Internet
             for personal purposes for approximately ten minutes after
             5:00 p.m.

             7. The employer discharged the claimant for personal use
             of its computer and Internet.
Board’s Finding of Fact Nos.1-7. The Board stated that Employer’s policy was
only nominally “zero tolerance” and that Employer tolerated employees’
violations of the policy so long as their use of computers and internet service was



(continued…)

Company v. Unemployment Compensation Board of Review, 648 A.2d 1245, 1248 (Pa. Cmwlth.
1994).


                                          5
not “excessive.”      After determining that Employer did not consistently and
uniformly enforce its policy, the Board concluded:

              [Claimant] never received a written warning for using the
              Internet and the Board would not even classify the
              manager’s statement to [Claimant] as being a warning,
              but more of a redirection to focus on using the phone to
              meet a deadline, not to never again use the Internet.
              Following this redirection, [Claimant] did not again use
              the Internet for another two hours, with only ten minutes
              of usage at the end of the workday. [Claimant] credibly
              testified that she believed this minimal usage to be
              permissible under the policy, as enforced. Considering
              [Employer’s] unenforced policy and the absence of a
              warning, the Board cannot conclude that [Claimant’s]
              continued use of the Internet was excessive and that she
              knew it to be excessive. Therefore, benefits may not be
              denied.
Board’s decision p.2. The Board reversed the referee’s decision and held that
Claimant was not ineligible for benefits due to willful misconduct.
              On appeal to this Court,3 Employer argues that the Board erred in
holding that Claimant’s actions did not rise to the level of willful misconduct.
Employer asserts that our decision in Pettyjohn v. Unemployment Compensation
Board of Review, 863 A.2d 162, 165 (Pa. Cmwlth. 2004), is controlling and
compels the conclusion that Claimant’s use of the internet without permission was
willful misconduct.
              Initially we note that the burden of proving willful misconduct rests
with the employer. Guthrie v. Unemployment Compensation Board of Review, 738

       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. Procyson v. Unemployment Compensation Board of Review, 4 A.3d 1124,
1127 n.4 (Pa. Cmwlth. 2010).



                                              6
A.2d 518, 521 (Pa. Cmwlth. 1999). Where the allegation of willful misconduct is
based on a violation of the employer's work rule, the employer must establish 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). If the employer makes that showing, the burden shifts to the
claimant to show good cause for her conduct.         Henderson v. Unemployment
Compensation Board of Review, 77 A.3d 699, 719 (Pa. Cmwlth. 2013).
            Additionally, our courts have consistently recognized that in willful
misconduct cases, the issue is not whether the employer had the right to discharge
the employee for the particular conduct, but rather whether the Commonwealth is
justified in reinforcing that decision by denying benefits under the Law. See, e.g.,
Frumento v. Unemployment Compensation Board of Review, 351 A.2d 631, 634
(Pa. 1976); Pennsylvania State Police v. Unemployment Compensation Board of
Review, 578 A.2d 1360, 1361 (Pa. Cmwlth. 1990).
            Employer contends that Claimant’s conduct was more egregious than
the employee’s internet usage that was held to be willful misconduct in Pettyjohn.
In August 2003, the employer in Pettyjohn reminded all employees that they were
permitted to access the internet for personal reasons only during established breaks
and lunch hours. Staff also were reminded that they were to speak to a supervisor
if they were short on work.       All employees, including the claimant, were
periodically reminded of this policy after the August 2003 meeting. In addition,
the employer’s handbook provided for immediate discharge where an employee
refused to obey a direct instruction from a supervisor.         The claimant was
discharged in November 2003 for accessing a variety of internet sites during work




                                         7
hours in violation of direct instructions from her supervisor. In her application for
benefits, the claimant said she did this because work was slow.
             The Board determined that the claimant knew or should have known
that accessing the internet during her work hours violated the employer’s policy
and that such a violation could jeopardize her employment. On appeal, we noted
the claimant’s admissions that she was aware that the employer’s policy prohibited
use of the internet for personal reasons during work hours and required employees
who ran out of work to seek additional work from a supervisor. Affirming the
Board’s decision, we stated that the Board “properly determined that [the claimant]
violated a clearly established policy and that her behavior constituted willful
misconduct.” Pettyjohn, 863 A.2d at 165.
             Employer’s contention that Pettyjohn is dispositive in this matter
relies, in part, on facts different from those found by the Board as well as
Employer’s mischaracterization of the Board’s decision as involving a disparate
treatment claim.     More important, the facts in Pettyjohn are significantly
distinguishable from the facts of this appeal. In Pettyjohn, the Board found an
established policy that was repeatedly communicated to all employees and that the
claimant knew or should have known that a violation of the policy would have
consequences. In contrast, Employer’s witnesses confirmed Claimant’s testimony
that the prohibited behavior was, in fact, routinely tolerated.
             We agree with the Board that where Employer admittedly tolerated
violations of its policy governing employees’ internet use, Employer failed to
establish that Claimant’s use of the computer and internet on May 30, 2014,
amounted to willful misconduct under Section 402(e). See Penn Photomounts, Inc.




                                           8
v. Unemployment Compensation Board of Review, 417 A.2d 1311 (Pa. Cmwlth.
1980).
             The employer in Penn Photomounts had a formal, written policy
concerning the procedure employees were to follow when reporting absences.
Under the policy, an employee taking sick leave or an unexcused absence was
required to notify the employer by reporting to the office by 9:00 a.m. on the first
day out.   Copies of the policy were posted throughout the office and were
distributed to all employees individually.      The claimant was discharged for
repeated unexcused absences and for failing to follow the employer’s established
reporting procedure.
             The local job center granted the claimant’s application for benefits
and the employer appealed.         At a hearing before a referee, the claimant
acknowledged that she was aware of the employer’s formal policy for reporting
absences. She further admitted that she had not followed that written policy on a
number of occasions but instead, had called coworkers in the building in which she
worked, informed them that she was ill and would not be coming to work, and
asked them to relay the message to someone in a supervisory capacity.
             The claimant further testified that the informal manner in which she
reported her absences was accepted practice at the company. She explained that
during past absences she had always called her coworkers rather than the main
office. The claimant said that no one ever told her to call the main office instead of
the other building, adding that she took calls in the same building from other
employees reporting their absences and passed on their messages to a supervisor.
A former coworker corroborated that portion of the claimant’s testimony, stating




                                          9
that she had never been reprimanded for not calling the office when she reported
an absence.
              The employer’s plant supervisor testified that although the employees’
practice of reporting absences by calling other employees rather than the main
office was not accepted procedure, the employer tolerated that informal practice for
short-term absences. He described a short-term absence as being from one to two
days and a long-term absence as being a week or more; however, he stated that the
employer had no formal policy differentiating between short-term and long-term
absences. He also acknowledged that during previous absences the claimant had
called her coworkers rather than the main office and that he had received at least
one message concerning her absence during the period at issue.
              The employer’s president testified that company regulations were
implemented and enforced in an informal and loose manner unless they were
abused by employees, in which case they were enforced firmly.
              A referee found the claimant ineligible for benefits under Section
402(e) of the Law, but the Board reversed. After resolving conflicts in testimony
in the claimant’s favor, the Board found that: the claimant always reported her
absences by calling her coworkers, who relayed those messages to the employer;
when the claimant reported her absence due to illness she followed past practice of
calling a coworker; the coworker relayed the message to the employer; and the
employer discharged the claimant for not reporting her absence directly to the
office. Based on those findings, the Board concluded that the claimant’s conduct
in reporting in her absence in her usual manner was not willful misconduct.
              On appeal in Penn Photomounts, we affirmed the Board’s decision.
Relying on our prior decision in Unemployment Compensation Board of Review v.


                                         10
Blouse, 350 A.2d 220, 222 (Pa. Cmwlth. 1976),4 we observed that although the
employer had a formal policy for reporting absences, the employer was aware that
its employees followed a less formal practice to report absences and tolerated the
less formal reporting practice.        Consequently, we concluded that while the
employer had the right to discharge the claimant for her conduct, her actions did
not constitute willful misconduct supporting a denial of benefits.
             In material respects, the circumstances in this case are similar to those
in Penn Photomounts.         Employer acknowledged that it tolerated employees’
violation of the computer/internet policy so long as their use was not excessive;
Employer’s policy did not define “excessive” or differentiate between permissive
and excessive computer usage; and Claimant credibly testified that she believed
her minimal usage was permissible under the policy as Employer enforced it.
Based on the facts as found by the Board, we also conclude that Claimant’s actions
did not amount to willful misconduct under Section 402(e) of the Law. Penn
Photomounts.
             Accordingly, we affirm the Board’s order.


                                                 ________________________
                                                 MICHAEL H. WOJCIK, Judge




      4
         In Blouse, we held that a claimant was not ineligible for benefits due to willful
misconduct where the evidence established that she followed procedures commonly accepted by
the employer.


                                            11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Great Valley Publishing,                   :
                                           : No. 49 C.D. 2015
                           Petitioner      :
                                           :
                  v.                       :
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                                           :
                           Respondent      :



                                        ORDER


             AND NOW, this 8th day of March, 2016, the order of the
Unemployment Compensation Board of Review, dated December 19, 2014, is
affirmed.



                                         __________________________________
                                         MICHAEL H. WOJCIK, Judge
