            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination,               :
                        Petitioner              :
                                                :
                   v.                           :   No. 920 C.D. 2019
                                                :   SUBMITTED: May 15, 2020
Unemployment Compensation Board                 :
of Review,                                      :
                    Respondent                  :


BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                               FILED: June 9, 2020

               Employer, Casey Ball Supports Coordination, petitions for review of
an order of the Unemployment Compensation Board of Review that reversed the
order of a referee. The referee had determined that Claimant, Tara K. Dieteman,
was ineligible for unemployment compensation benefits because her actions
constituted willful misconduct under Section 402(e) of the Unemployment
Compensation Law (Law).1 We affirm the adjudication of the Board.
               The facts found by the Board are as follows. Employer provides case
management services to senior citizens and individuals with physical disabilities.
Claimant worked as a full-time service coordinator and her duties included making
contact with consumers and inputting information into a computer following her
encounters. She worked for Employer from July 18, 2015, until February 26, 2019,
at a final hourly rate of $18.00. (Board’s June 21, 2019, Decision, Finding of Fact
“F.F.” No. 1.)

   1
       Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
            In January 2019, Employer’s billing procedures changed when it
partnered with Pennsylvania Health and Wellness (PHW).            A managed care
organization, PHW monitored Employer on a monthly basis. (F.F. Nos. 2 and 3.)
Although both PHW and Employer discussed billing and documentation with the
employees, PHW did not have specific guidelines for Employer’s billing practices.
(F.F. No. 4.) Additionally, even though PHW had a portal into which the person
providing services had to enter all information regarding the services provided, the
portal did not always work correctly. (F.F. Nos. 6 and 7.) Nonetheless, “PHW
would go through consumer files which [were] red flagged and discuss with
[E]mployer a plan of action relative to the employee who had been involved with
the files[.]” (F.F. No. 5.) This review could lead to an employee’s discharge from
employment. (Id.)
            On February 22, 2019, Employer had a staff meeting at which time it
discussed billing procedures.    Guidelines included “nobody should be billing
excessively” and if billing for greater than two hours, “they better have a really,
really thorough note.”    (F.F. No. 8.)       Following an audit, PHW red-flagged
Claimant’s files when she “billed for more hours than PHW wanted[.]” (F.F. No.
10.) In addition, “[t]here was a lack of documentation of [C]laimant making monthly
contacts with consumers.” (F.F. No. 9.) Consequently, four days after the staff
meeting, Employer discharged Claimant for billing fraud and not complying with
company policies and procedures. (F.F. No. 12.) The Indiana UC Service Center
denied her application for unemployment compensation benefits pursuant to Section
402(e) of the Law.
            On appeal, the referee conducted a hearing at which Claimant appeared
pro se and Employer’s owner, Casey Ball, appeared with counsel. The referee
denied benefits, determining that Employer met its burden of establishing willful


                                          2
misconduct.    Specifically, the referee credited the testimony of Ms. Ball that
Employer and PHW repeatedly explained to all staff the billing procedures and the
amount to be billed per consumer but that Claimant failed to input the appropriate
documentation into the portal, failed to account for the services that she provided,
and billed in excess of what was permissible. The Board reversed, resolving all
conflicts in testimony in favor of Claimant.        Employer’s petition for review
followed.
              Employer argues that the referee correctly determined that Claimant’s
actions constituted willful misconduct and that Employer carried its burden of
establishing that willful misconduct. Additionally, Employer maintains that the
Board erred in disturbing the referee’s credibility determination and findings of fact,
reversing the referee’s decision, and issuing its own decision.           Employer’s
arguments are without merit.
              We turn first to the Board’s issuance of its own decision. Contrary to
Employer’s suggestion, the Board is the ultimate finder of fact in unemployment
compensation cases with the power to determine credibility and evidentiary weight.
Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1388 (Pa. 1985);
Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010).
The Board’s findings of fact are conclusive on appeal when the record, in its entirety,
contains substantial evidence supporting those findings. Oliver, 5 A.3d at 438.
Additionally, although Employer challenged the legality of the Board’s issuance of
findings of fact, Employer failed to make specific challenges to any of those
findings.   Accordingly, the findings are conclusive on appeal.          Campbell v.
Unemployment Comp. Bd. of Review, 694 A.2d 1167, 1169 (Pa. Cmwlth. 1997).
              Where, as here, both parties submitted evidence, there was no need for
the Board to specify why it deviated from the referee’s findings of fact and


                                          3
conclusions of law. Peak, 501 A.2d at 1386-87; Hasely v. Unemployment Comp.
Bd. of Review, 553 A.2d 482, 487 (Pa. Cmwlth. 1989). Consequently, the fact that
the referee personally observed the witnesses is of no moment. Finally, as long as
there is substantial evidence for the Board’s findings, “[t]he fact that Employer may
have produced witnesses who gave a different version of the events, or that
Employer might view the testimony differently than the Board, is not grounds for
reversal . . . .” Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106,
1108-09 (Pa. Cmwlth. 1994). Here, the Board credited Claimant’s testimony and
we cannot overturn that credibility determination on appeal.             Fitzpatrick v.
Unemployment Comp. Bd. of Review, 616 A.2d 110, 111 (Pa. Cmwlth. 1992). We
are bound to view the evidence in the light most favorable to Claimant, as the party
who prevailed before the Board, and give her the benefit of all inferences that can
logically and reasonably be drawn from the testimony. Chapman v. Unemployment
Comp. Bd. of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011). Mindful of the
foregoing, we turn to the merits of the willful misconduct determination.
             Section 402(e) of the Law provides, in pertinent part, that an employee
shall be ineligible for compensation for any week “[i]n which his unemployment is
due to his discharge or temporary suspension from work for willful misconduct
connected with his work . . . .” 43 P.S. § 802(e). The term “willful misconduct” has
been defined to include: (1) the wanton and willful disregard of the employer’s
interests; (2) the deliberate violation of work rules; (3) the disregard of standards of
behavior which an employer can rightfully expect of its 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. Glatfelter Barber Shop v. Unemployment Comp. Bd. of Review, 957
A.2d 786, 792 (Pa. Cmwlth. 2008). While we must defer to the Board’s fact finding


                                           4
regarding the claimant’s conduct, whether those actions constitute willful
misconduct is a question of law over which we exercise plenary review. Frazier v.
Unemployment Comp. Bd. of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).
               Additionally, the employer bears the initial burden of proving that the
claimant engaged in willful misconduct. Yost v. Unemployment Comp. Bd. of
Review, 42 A.3d 1158, 1162 (Pa. Cmwlth. 2012). If the willful misconduct charge
is based upon a violation of a work rule, the employer must prove the existence of
the rule and its violation. Caterpillar, Inc. v. Unemployment Comp. Bd. of Review,
703 A.2d 452, 456 (Pa. 1997). The Court will examine whether the work rule is
reasonable in light of all of the circumstances and, if so, whether claimant had good
cause to violate the rule.        Id.    Reasonableness is determined by whether the
employer’s application of the rule under the circumstances is fair, just and
appropriate to pursue a legitimate interest. Id.
               In concluding that Claimant’s actions did not constitute willful
misconduct, the Board took into consideration the fact that Employer admitted that
there were problems with PHW’s portal when employees attempted to input
information and that PHW did not have any specific guidelines for how Employer
was to bill.2 (Board’s Decision at 2-3.) In addition, the Board noted the lack of
specificity of the guidelines discussed at the staff meeting.3 Considering the fact that
the change in billing procedures occurred in January 2019, that “significant
    2
      (April 25, 2019, Hearing, Notes of Testimony “N.T.” at 8 and 15; Reproduced Record “R.R.”
at 71a and 78a.)
    3
      Employer references post-termination emails as support for the existence of specific policies
and guidelines for billing. (Employer’s Brief at 14) (citing N.T. at 9-11; R.R. at 72a-74a and
Employer’s Hearing Ex. No. 1 at 2-4; R.R. at 87a-89a). However, there is no indication that
Employer conveyed such policies to Claimant while she remained an employee. Consequently,
Employer failed to establish the existence of specific rules or guidelines in accordance with the
relevant criteria. Caterpillar, Inc.



                                                5
clarification about such procedures was ongoing to all staff through February
[2019],” and that Employer discharged Claimant a mere four days after the staff
meeting, the Board concluded that Employer did not establish willful misconduct.4
(Id. at 3.) The Board rejected any suggestion that Claimant’s actions constituted
fraudulent overbilling. Instead, it opined that “[a]t worst, [Claimant’s] conduct was
more akin to negligence or poor work performance, neither of which is willful
misconduct.”      (Id.)    Notably, incompetence, inexperience or inability do not
constitute willful misconduct. Ungard v. Unemployment Comp. Bd. of Review, 442
A.2d 16, 19 (Pa. Cmwlth. 1982).
               Because we conclude that the Board did not err in determining that
Employer failed to sustain its burden of establishing that Claimant’s actions
constituted willful misconduct, we affirm.



                                             _____________________________________
                                             BONNIE BRIGANCE LEADBETTER,
                                             Senior Judge




    4
      Although the Board found that Claimant had warnings in 2017 for billing and in 2018 for
answering emails, it concluded that they were relatively immaterial given the fact that they
preceded the new billing procedures. (Board’s Decision at 3.) Indeed, remoteness is a factor in
assessing willful misconduct. See Tundel v. Unemployment Comp. Bd. of Review, 404 A.2d 434,
436 (Pa. Cmwlth. 1979) (the remoteness doctrine provides that “[a]n incident of willful misconduct
cannot be so temporally remote from the ultimate dismissal and still be the basis for a denial of
benefits”).

                                                6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Casey Ball Supports Coordination,       :
                        Petitioner      :
                                        :
              v.                        :   No. 920 C.D. 2019
                                        :
Unemployment Compensation Board         :
of Review,                              :
                    Respondent          :



                                     ORDER


            AND NOW, this 9th day of June, 2020, the order of the Unemployment
Compensation Board of Review is hereby AFFIRMED.




                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
