          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jenna M. D’Annunzio,                     :
                Petitioner               :
                                         :
             v.                          : No. 161 C.D. 2017
                                         : Submitted: October 17, 2017
Unemployment Compensation                :
Board of Review,                         :
                 Respondent              :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                  FILED: November 14, 2017


             Jenna M. D’Annunzio (Claimant) petitions for review from the
Unemployment Compensation Board of Review’s (Board) decision finding her
ineligible for unemployment compensation (UC) benefits under Section 402(e) of
the Unemployment Compensation Law1 (Law) because she was terminated for

      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e). Under Section 402(e) of the Law, an employee is 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” is not defined in the Law, but has been defined in case law to mean:

             (a) wanton or willful disregard for an employer’s interests; (b)
             deliberate violation of an employer’s rules; (c) disregard for
             standards of behavior which an employer can rightfully expect of
(Footnote continued on next page…)
willful misconduct for divulging confidential information she learned in the course
of her work with Delaware County’s Child and Youth Services (Employer) without
good cause. For the following reasons, we affirm.


                                                 I.
               For nearly 16 years, Claimant worked for Employer as a full-time
screening supervisor. When she began her employment, she signed an Oath of
Confidentiality, which provided:

               Knowing that violation of my Oath of Confidentiality
               may cause injury or damage to others and may result in
               disciplinary action against me:

               I [Claimant] do solemnly swear (or affirm) that I am fully
               aware of the confidential nature of the information I must
               handle in my position.

               And I do further swear (or affirm) that I will not
               knowingly divulge any facts or information of any kind
               acquired by me in connection with my position to any
               person or persons not entitled to receive such
               information.



(continued…)

               an employee; or (d) negligence indicating an intentional disregard
               of the employer’s interest or an employee’s duties or obligations.

Navickas v. Unemployment Compensation Board of Review, 787 A.2d 284, 288 (Pa. 2001).
When a claimant is discharged on the basis that he violated a work policy, the employer has the
burden of proving: (1) the existence of the policy, (2) that the policy was reasonable, and (3) that
the claimant was aware of and violated the policy deliberately. Rothstein v. Unemployment
Compensation Board of Review, 114 A.3d 6, 9 (Pa. Cmwlth. 2015).




                                                 2
(Record (R.) Item No. 13, Referee’s Hearing:          Transcript of Testimony w/
Employer Exhibits, dated 10/31/2016, Exhibit 2.) Preceding this language, the
reason for the policy was set forth as:

             The unauthorized and improper release of personal
             information on individuals has caused great damage to
             innocent persons and is the subject of wide concern
             today. In order to insure the right of privacy, and to
             assure everyone that all information you handle will be
             kept in strictest confidence, you are required to subscribe
             to the [Oath of Confidentiality].


Id.


             In the course of her work, Claimant discovered that two of her
boyfriend’s friends were being investigated for the sexual assault of their children.
She shared this information with her boyfriend, purportedly in confidence, because
she feared he would bring those friends to her house, as he had done previously
with one of them. Claimant’s concern was that this would put her 11-year-old
daughter in danger. When Employer learned that this confidential information had
been disclosed, Employer conducted an investigation into the matter and
subsequently terminated Claimant’s employment.         This was the only instance
during her 16 years of employment that Claimant was found to have violated a
policy of Employer.




                                          3
              Claimant applied for UC benefits with the Lancaster UC Service
Center (Service Center).2 During the oral interview, when asked why she divulged
this confidential information, Claimant responded:

              There [were] numerous reports concerning this person. I
              was so surprise[d] when I [saw] the case and numerous
              allegations. Usually I am immune[], but this just really
              surprised me.


(R. Item No. 6, Claimant Record of Oral Interview, dated 9/15/2016.) The Service
Center denied benefits because Claimant’s breach of confidentiality constituted
willful misconduct, thus rendering her ineligible for benefits under Section 402(e)
of the Law, 43 P.S. § 802(e). Claimant appealed this determination.


              Before the Referee, Molly Thompson (Thompson), Employer’s intake
manager, testified:

              Q: Why is it important to keep confidential information
              from third parties who are not involved in the specifics?

              A: It can harm our investigation and put children at risk.




       2
         While Claimant’s claim was under review, she received a payment for benefits in the
amount of $539.50. The Service Center acknowledged that the payment was made inadvertently.
The Referee determined that because Claimant was ineligible for benefits under Section 402(e)
of the Law, she was not entitled to the money she received and, therefore, under Section
404(b)(1) of the Law, the payment was recoupable. 42 P.S. § 804(b)(1). Claimant does not
appeal this issue.




                                             4
(R. Item No. 13, Referee’s Hearing:            Transcript of Testimony w/ Employer
Exhibits, dated 10/31/2016, p. 11.) At the hearing, Claimant was questioned about
whether she knew of the confidential nature of the information she provided to her
boyfriend. Claimant’s attorney specifically asked her:

               Q: Did you say anything to your boyfriend about
               confidentiality or anything of that nature?

               A: Yes, I did. I . . .

               Q: What did you say?

               A: …told him in confidence. I thought it was somebody
               that I could trust, and I, basically, said to him that he
               couldn’t tell anyone this information, that the reason for
               me telling him was that I did not want these people in my
               home or around my daughter.


(Id. at 12.) The Referee further questioned her:

               Q: When you became aware that these individuals were
               listed as perpetrators in the report and determined that
               they had been in your home at some point, did you report
               that to the Employer?

               A: No.

               Q: And is there any reason why not?

               A: I think I panicked honestly. I was extremely upset
               when I saw their names on that referral. . . .


(Id. at 14.)




                                           5
               The Referee denied benefits, finding that Claimant intentionally
violated Employer’s known policy by knowingly and deliberately divulging
confidential information to her boyfriend. The Referee also found that Claimant
had no good cause for divulging this information because she should have
informed her boyfriend not to bring the alleged perpetrators into her home without
divulging confidential information in the process. Claimant appealed to the Board,
which affirmed the Referee’s decision. This appeal followed.3


                                               II.
               Claimant admits that she violated Employer’s policy of not divulging
confidential information and she does not contend that the policy is unreasonable.
Relying on Grieb v. Unemployment Compensation Board of Review, 827 A.2d 422
(Pa. 2003), she contends that her actions did not constitute willful misconduct
because when she learned that her boyfriend’s friends were being investigated for
sexual assault of their children, she panicked out of concern for her daughter’s
welfare and did not intend to deliberately violate Employer’s policy.


               In Grieb, the claimant was a part-time schoolteacher who had been in
the process of moving to a new house when she received a phone call from the
school at 6:00 a.m., asking her to come fill in for a teacher that very morning.
Because she had been in the process of moving, many of her belongings were in


       3
          This Court’s scope of review is limited to determining whether the Board committed an
error of law or violated constitutional rights, or whether their findings of fact are supported by
substantial evidence. Key v. Unemployment Compensation Board of Review, 687 A.2d 409, 411
n.2 (Pa. Cmwlth. 1996).




                                                6
the car, including three unloaded shotguns. She rushed to the school and forgot
that the shotguns were still in the car. By accidentally leaving the shotguns in her
car in the school parking lot, she violated the school policy against guns on school
property. Accordingly, when the guns were discovered, she was discharged. Our
Supreme Court held that determining whether an action constitutes willful
misconduct requires a consideration of “all of the circumstances, including the
reasons for the employee’s noncompliance with the employer’s directives.” Grieb,
827 A.2d at 426 (citing Rebel v. Unemployment Compensation Board of Review,
723 A.2d 156, 158 (Pa. 1998)).               While acknowledging the existence and
reasonableness of the school policy, our Supreme Court held that, given the totality
of the circumstances, the claimant did not commit willful misconduct because her
bringing guns onto school property was inadvertent rather than deliberate.
Therefore, she was eligible for UC benefits.


              In this case, unlike the claimant in Grieb where the violation was an
act of absent-mindedness, Claimant admitted that she intentionally divulged
confidential information to her boyfriend knowing that it was against Employer’s
policy to do so. Claimant’s testimony before the Referee confirms this fact, as she
admitted that she told her boyfriend the information was confidential and that he
could not tell anyone.4 She fully understood that she was violating Employer’s
policy but did so regardless.        Because she intentionally divulged confidential

       4
          Claimant also contends that her violation cannot be considered willful misconduct
because this was the first violation she committed and that it should be considered de minimis.
However, we have consistently held that the de minimis argument has no place in cases involving
a deliberate violation of an employer’s rules. See Sheets v. Unemployment Compensation Board
of Review, 708 A.2d 884, 885 (Pa. Cmwlth. 1988); General Electric Company v. Unemployment
Compensation Board of Review, 411 A.2d 578, 580 (Pa. Cmwlth. 1980).



                                              7
information in direct violation of Employer’s policy, Claimant’s actions constitute
willful misconduct.


                                        III.
             Claimant also argues that even if Employer met its burden of
establishing that she deliberately violated its confidentiality policy, she had good
cause to do so because she did it with her child’s welfare in mind.


             If an employer establishes an intentional and deliberate violation of a
work rule, an employee is given the opportunity to show good cause for her
conduct. McKeesport Hospital v. Unemployment Compensation Board of Review,
625 A.2d 112, 114 (Pa. Cmwlth. 1993). Where an action of an employee is
justifiable or reasonable under the circumstances, it cannot be considered willful
misconduct inasmuch as it cannot properly be charged as a willful disregard of the
employer’s interests, the rules or standard of conduct the employer has a right to
expect. Frumento v. Unemployment Compensation Board of Review, 351 A.2d
631, 634 (Pa. 1976).


             Claimant contends that she had good cause for violating Employer’s
policy because it was done solely with her child’s safety in mind. However, where
there are reasonable alternative means to address the concerns that led to the
violation of the work rule, a claimant does not have good cause to violate that rule.
Arbster v. Unemployment Compensation Board of Review, 690 A.2d 805, 810 (Pa.
Cmwlth. 1997). While Claimant’s intention of trying to protect her child from
potential harm is a given, Claimant could have told her boyfriend that she did not



                                         8
want him to invite those specific friends to her house without divulging
confidential information. Because she had a reasonable alternative to divulging
confidential information to protect her child, Claimant did not have good cause to
violate Employer’s policy.


            Accordingly, for the foregoing reasons, we affirm.



                                        ________________________________
                                        DAN PELLEGRINI, Senior Judge




                                        9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jenna M. D’Annunzio,              :
                Petitioner        :
                                  :
            v.                    : No. 161 C.D. 2017
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :




                                ORDER


            AND NOW, this 14th day of November, 2017, the January 19, 2017
order of the Unemployment Compensation Board of Review in the above-
captioned matter is affirmed.



                                    ________________________________
                                    DAN PELLEGRINI, Senior Judge
