             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Julianna Rusecky,                               :
                               Petitioner       :
                 v.                             :    No. 169 C.D. 2019
                                                :    Argued: June 8, 2020
Unemployment Compensation                       :
Board of Review,                                :
                    Respondent                  :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: July 7, 2020

                 Julianna Rusecky (Claimant) petitions for review of an adjudication of
the Unemployment Compensation Board of Review (Board) finding her ineligible
for benefits under Section 402(e) of the Unemployment Compensation Law (Law),
43 P.S. §802(e).1         The Board found that Claimant, a childcare worker, was
dismissed for not adequately checking a stroller that contained a sleeping child and
that this conduct constituted willful misconduct. On appeal, Claimant argues that
the Board erred because her conduct constituted mere negligence.                      Claimant
further argues that there was no evidence that she deliberately violated an
employment rule.
                 Claimant worked full-time for Right Steps of Rittenhouse Square
(Employer), a boutique preschool and childcare center, as an Assistant Group
Supervisor. She was dismissed on August 22, 2018. Claimant filed a claim for
unemployment compensation benefits, which the Unemployment Compensation




1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
(UC) Service Center denied. Claimant appealed, and the Referee held a hearing on
October 24, 2018.
                 Employer presented the testimony of Koren Clark, Site Director.
Clark explained that she discharged Claimant and another teacher for leaving a
child unattended for approximately 20 minutes. Employer’s handbook requires
employees to focus their attention on the children. It states as follows:

                 Focused Attention and Observation of Children: At all times,
                 including while interacting with individual children—watching,
                 counting, and listening for sounds or the absence of sounds that
                 raise concern. Teachers/caregivers limit adult-adult socializing
                 to break times or when they have made arrangements to
                 delegate supervision of children to another teacher/caregiver.
                 They do not talk on cell phones or use text messages or other
                 forms of social media while supervising children, except to
                 summon help in an emergency.

Certified Record (C.R.) Item No. 3 at Service Center Exhibit 15 (emphasis added).
Employer’s handbook states that an employee can be discharged for violating the
active supervision policy. Clark testified that the Department of Human Services
requires “children under the age of three to be within sight and sound at all times
of teachers who are responsible for supervision of the classroom or large group.”
Notes of Testimony, 10/24/2018, at 14 (N.T. __); C.R. Item No. 9.2 In a classroom
of one-year-olds, each teacher is assigned five children.

2
    Section 3270.113(a)(1) of the Department of Human Services’ regulations reads:
          (a) Children on the facility premises and on facility excursions off the premises
          shall be supervised by a staff person at all times. Outdoor play space used by the
          facility is considered part of the facility premises.
                  (1) Each staff person shall be assigned the responsibility for
                  supervision of specific children. The staff person shall know the
                  names and whereabouts of the children in his assigned group. The
                  staff person shall be physically present with the children in his
                                                  2
              Clark recounted that shortly after Claimant began her employment,
she received a warning for not following the above-quoted active supervision
policy.   As a result, Claimant was required to undergo two hours of special
training, which consisted of watching videos on safety recognition and supervision
skills. Clark described Employer’s child supervision policy as follows:

              [S]taff are responsible for all the children in their care at the
              time. When supervising a group of children, you are not only
              responsible to the individual children assigned to you but the
              entire group. That way [] there are several eyes on children at
              all times. When entering – transitioning from one area of the
              building or in and out of the building, staff are to sweep the
              area, make sure that there are no children hiding, make sure
              that they’re counting their children and that they’re
              communicating as a group where children are and what is
              happening.

N.T. 10 (emphasis added).
              Clark then detailed the incident for which Claimant was discharged.
Clark explained that Employer uses buggies, or extended strollers, to transport
children. The strollers have three rows of two seats and are kept in a hallway
connected to the first floor playroom.           On August 22, 2018, a teacher from
Claimant’s classroom informed Clark that they were missing a child after their
morning buggy ride. Clark immediately went to the “buggy area,” where she
discovered the missing child asleep “in the last buggy that was parked[.]” N.T. 11.
She brought the child to the classroom and asked the four teachers, including
Claimant, to write statements about the incident. Claimant’s statement read “I



             group on the facility premises and on facility excursions off the
             facility premises.
55 Pa. Code §3270.113(a)(1).
                                             3
unfastened the kids in my group from the stroller. I proceeded to head up the
elevator with five children.” C.R. Item No. 9 at Exhibit 5.
             Clark reviewed the building’s camera footage to determine what
happened. She testified as follows:

             [Clark]: There were four teachers with the group. I saw a
             teacher having a conversation with [Claimant]. [Claimant] was
             looking at the buggy at the time, like I said it was about three
             feet away. In the buggy it was clear that there were still two
             children in the buggy. One was in the left middle seat and one
             was in the right rear seat.

             [Employer Tax Consultant Representative (ET)]: Could you see
             the children on the video when you reviewed [it]?

             [Clark]: Yes I could.

             [ET]: Well what happened to the first teacher after you saw her
             talking with [Claimant?]

             [Clark]: She exited the room.

             [ET]: And who remained there after the teacher exited the
             room?

             [Clark]: [Claimant] and another employee.

             [ET]: What happened to the next employee?

             [Clark]: That employee stepped in to the bathroom.

             [ET]: And so what happened then? What did you observe on
             the video with regard to [Claimant] then being alone in the –
             with the stroller?

             [Clark]: [Claimant] approached the stroller, she walked around
             the other side of the stroller, removed the child in the middle
             and then pushed the buggy back in to the hallway corner with
             the sleeping child.


                                         4
N.T. 12-13.
              Clark acknowledged that at no point did Claimant state that she was
aware of the child in the buggy. The unattended child was one of five assigned to
another teacher, who was also discharged. Clark explained that the two teachers
were discharged because

              the group contained 19 children. Each staff member, in order to
              transition children safely are assigned a partner. The other two
              staff transferred their primary group. The remaining two staff
              [Claimant] and [the other teacher] failed to count the children
              that they were left with [and] responsible for and failed to do a
              sweep of the area appropriately.

N.T. 14 (emphasis added).
              Claimant testified on her own behalf. She explained that on the day in
question, she and three other teachers had taken a group of children for a walk
outside in the strollers. When they returned, she took her five assigned children
out of the stroller and put the strollers away. Claimant stated that she did a quick
sweep of the strollers but did not see the sleeping child, who had been sleeping on
his side.
              Claimant testified that a teacher is responsible for the five children
assigned to her and maintaining the required five-to-one ratio. Claimant further
explained that on the day in question,

              [t]he other teacher did go to the bathroom and leave me with
              nine children and when she came out, we proceeded to go
              upstairs to the classroom on the elevator. We counted our
              children. Whether she came down with nine or not, I assume
              she came down with nine, but I had my five. The child that was
              left behind was not in my group and we went upstairs and
              proceeded to have lunch. About 10 minutes went by before any
              of us four teachers noticed this child was gone.

                                          5
N.T. 16. Claimant stated that she “had no idea” that a child had been left behind in
the stroller because she had counted her five children. Id. When pressed by the
Referee about how she could have missed the child, Claimant said it was a
mistake. Claimant explained:

             [T]o see on the paper willful misconduct, to me, my definition
             of that is that I willingly did this on purpose, which I did not. I
             would not harm a child. There may be another definition for
             that, but it was not willingly done. It was a mistake and I feel
             terrible about it.

Id.
             The Referee affirmed the UC Service Center’s decision, holding that
Claimant was ineligible for benefits by reason of willful misconduct. The Referee
found that Claimant’s failure to check the buggy where the child was sleeping and
her failure to sweep the area and count all the children constituted a disregard of
Employer’s active supervision policy. Claimant appealed to the Board, arguing
that Employer failed to establish that she intentionally and deliberately violated its
active supervision policy.
             The Board affirmed the Referee’s decision but modified one finding
of fact to read that “[C]laimant had failed to adequately check the stroller in which
the child was sleeping according to [E]mployer’s policies and procedures.” Board
Adjudication, 1/14/2019, at 1; C.R. Item No. 14. The Board also found that
Claimant did make a quick sweep of the strollers before pushing them to the
storage area in the hallway. Nevertheless, the Board found Claimant ineligible for
benefits. The Board explained that an act of negligence is not ordinarily found to
be willful misconduct but “where an employer establishes that an employee’s



                                          6
inadvertent conduct displays a disregard of a known rule, willful misconduct may
be found.” Id. at 2. It reasoned that

              [C]laimant knew [E]mployer’s policies and procedures direct
              that she is responsible for all of the children and require that she
              physically check the strollers to ensure no child is left behind.
              [C]laimant was previously warned for leaving a child
              unsupervised and was given additional training in supervising
              children. On the day of the final incident, [C]laimant admits
              that she made only a quick sweep of the strollers before pushing
              them down a narrow hallway, resulting in a sleeping child being
              left in the stroller unsupervised for at least twenty (20) minutes.

Id. Claimant petitioned for this Court’s review.
              On appeal,3 Claimant argues that the Board erred in holding that she
was ineligible for benefits under Section 402(e) of the Law. She argues that
accidentally leaving a sleeping child in a stroller does not constitute willful
misconduct, particularly when that child is assigned to another teacher.                 She
contends that Employer’s evidence did not establish a deliberate and intentional
violation of its child supervision policy.
              We begin with the law on willful misconduct. Section 402(e) of the
Law provides:

              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


3
 Our review determines “whether constitutional rights were violated, [whether] an error of law
was committed or whether necessary findings of fact are supported by substantial competent
evidence.” Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296,
298 n.2 (Pa. Cmwlth. 1995).
                                              7
            connected with his work, irrespective of whether or not such
            work is “employment” as defined in this act[.]

43 P.S. §802(e). This Court has explained that

            [t]here are four categories of activity that can constitute willful
            misconduct: (1) the wanton or willful disregard of the
            employer’s interests; (2) the deliberate violation of the
            employer’s rules; (3) the disregard of the standards of behavior
            which an employer can rightfully expect from an employee; and
            (4) negligence demonstrating an intentional disregard of the
            employer’s interests or the employee’s duties and obligations to
            the employer.

Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 439 (Pa.
Cmwlth. 2000). Whether the conduct for which an employee has been discharged
constitutes willful misconduct is a question of law.       Id. at 438.    Where the
employer proves willful misconduct, it then becomes the claimant’s burden to
prove that he had good cause, i.e., his actions were justified and reasonable under
the circumstances. Id. at 438-39.
            An employer cannot prove willful misconduct by “merely showing
that an employee committed a negligent act, but instead must present evidence
indicating that the conduct was of an intentional and deliberate nature.” Myers v.
Unemployment Compensation Board of Review, 625 A.2d 622, 625 (Pa. 1993)
(quoting Bucher v. Unemployment Compensation Board of Review, 463 A.2d
1241, 1243 (Pa. Cmwlth. 1983)). Where the employee’s negligence “is of such a
degree or recurrence as to manifest culpability, wrongful intent, or evil design, or
show an intentional and substantial disregard of the employer’s interest or of the
employee’s duties and obligations to the employer,” the negligent act can
constitute willful misconduct.       Id. (quoting Coleman v. Unemployment
Compensation Board of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)).

                                         8
             Our Supreme Court expanded on these principles in Navickas v.
Unemployment Compensation Board of Review, 787 A.2d 284 (Pa. 2001). There,
the claimant was hired by a hospital shortly after graduating from nursing school.
After the claimant committed an error in patient care, the hospital placed the
claimant under the supervision of a nurse preceptor for five weeks. Shortly after
completing this supervision, the claimant administered an antibiotic that had not
been properly diluted.     The employer’s policy required nurses to consult a
medication reference book if they had a question about a dilution ratio. The
claimant explained that she glanced at the book, but did not read it carefully
because she had previously administered the drug and thought she knew the proper
ratio.
             The Board reversed the referee’s award of benefits, and this Court
affirmed the Board. The Supreme Court reversed and reinstated the referee’s
decision, holding that the claimant did not act with intentional disregard of the
employer’s interest or its rules. Rather, by merely glancing at the reference book
before diluting the medication, the claimant acted with negligence. The Supreme
Court held that the disregard of the employer’s interests must be intentional in
order to disqualify an employee for unemployment benefits.
             In Grieb v. Unemployment Compensation Board of Review, 827 A.2d
422 (Pa. 2003), the claimant, a school employee, was dismissed after she came to
the school with several guns in her car. The claimant had loaded her car with
personal belongings to be moved into her new home; these included books, lamps,
clothing and three unloaded shotguns. Because it was raining when she arrived at
her new home, she decided to defer the unpacking to the next morning. However,
at 6:00 a.m. the next morning, the school district called the claimant to fill in for


                                         9
another teacher because of an emergency. The claimant, whose regular start time
was 12:00 p.m., agreed and went to the school. Forgetting about the unloaded
shotguns, the claimant parked her car in the staff member-only lot and locked it. A
staff member noticed the weapons and alerted the school administration, which
suspended claimant without pay. The referee and the Board held that she was
ineligible for benefits under Section 402(e) of the Law, and this Court affirmed.
             In reversing, the Supreme Court held that the evidence did not
establish that the claimant acted in disregard of the school district’s interests. It
concluded that her actions were merely negligent and neither intentional nor
deliberate. It held that the claimant’s unintentional violation of school policy did
not rise to the level of willful misconduct.
             Claimant argues that Navickas and Grieb govern the outcome of her
appeal. Claimant attempted to comply with Employer’s policy. She checked over
the strollers, but she did not see the sleeping child in spite of this check. The
Board did not make a finding that Claimant intentionally violated Employer’s
active supervision policy. Instead, the Board found that Claimant “had failed to
adequately check” the strollers where the child was sleeping and “made a quick
sweep” of the strollers. Board Adjudication, 1/14/2019, at 1; C.R. Item No. 14
(emphasis added). Without a finding by the Board that Claimant deliberately and
intentionally violated the active supervision policy, Claimant argues that her
conduct did not constitute willful misconduct.
             The Board responds that “Employer requires that a teacher actively
supervise the children and [to] physically check the strollers, which is why
Claimant’s quick sweep of the strollers did not comply with [Employer’s] rule.”
Board Brief at 13. It argues that the cases cited by Claimant are inapposite because


                                          10
those cases did not involve an employer’s rules. The Board argues that Claimant’s
conduct cannot “be described as negligent.” Id. at 14. We disagree.
             First, the Board’s findings do not show that Claimant refused to
follow the active supervision policy. It found that Claimant did sweep the room, as
required by the policy, but did so quickly. The Board also found that Claimant
checked the stroller that held the sleeping child but did not do so “adequately.”
Board Adjudication, 1/14/2019, at 1; C.R. Item No. 14. These findings show poor
performance, which constitutes negligence, not willful misconduct.
             Second, there is no support for the Board’s assumption that
Employer’s active supervision policy required every teacher to “physically check”
every stroller at the conclusion of an outing. If this was the case, all four teachers
that participated in the outing should have been fired. Nevertheless, the evidence
showed that Claimant did a “physical check.” Employer’s own witness, Clark,
testified that Claimant approached the stroller, walked around the other side of the
stroller, removed the child in the middle row of seats, and then pushed the stroller
with the sleeping child into the corner.       N.T. 13.    Clark described physical
interaction with the stroller.
             Employer’s active supervision policy makes no mention of a
“physical check,” of strollers, and Clark did not testify that the policy required this
measure. The concept appears to have been introduced by the Referee, as the
following exchange demonstrates:

             [Referee]: Yeah but then when you were putting them away,
             did you physically go and see what’s inside the buggies because
             a child is small, they could have…

             [Claimant]: I took a quick sweep. I did not see a child.

             [Referee]:    You did not see the child sleeping?
                                          11
             [Claimant]: He must have been passed over to the side.

             [Referee]: So all the more reason when children are along, do
             you physically make sure that the child is not in the buggy?

             [Claimant]: Yes.

             [Referee]: Or are you just [glancing to] make sure that okay,
             nobody is there, let me go on.

             [Claimant]: We’re supposed to physically make sure none of
             them are in there.

             [Referee]:   So you didn’t do that, ma’am.

             [Claimant]: Say again.

             [Referee]:   Did you do that?

             [Claimant]: I checked the buggies. I did not see this child
             there, sleeping.

Id. at 17. The handbook says nothing about “physically checking” the strollers.
However, we agree with Claimant that the testimony of both Clark and Claimant
shows that Claimant did a physical check of the stroller.
             We conclude that as in Navickas and Grieb, the evidence did not
establish that Claimant acted with deliberate and intentional disregard of
Employer’s policy or interests. Simply, Employer did not meet its burden of
proving willful misconduct. Accordingly, we reverse the decision of the Board
and remand for the computation of benefits owed to Claimant.


                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge




                                         12
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Julianna Rusecky,                          :
                         Petitioner        :
            v.                             :   No. 169 C.D. 2020
                                           :
Unemployment Compensation                  :
Board of Review,                           :
                    Respondent             :

                                      ORDER

            AND NOW, this 7th day of July, 2020, the order of the
Unemployment Compensation Board of Review in the above-captioned matter,
dated January 14, 2019, is hereby REVERSED, and the matter is REMANDED to
the Board for a computation of benefits.
            Jurisdiction relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
