                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan E. Siegfried,                           :
                      Petitioner              :
                                              :   No. 1632 C.D. 2013
              v.                              :
                                              :   Submitted: March 7, 2014
Unemployment Compensation                     :
Board of Review,                              :
                 Respondent                   :


BEFORE:       HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: August 13, 2014


              Susan E. Siegfried (Claimant) petitions for review of the August 28,
2013 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s determination that Claimant is ineligible for benefits pursuant to
section 402(e) of the Unemployment Compensation Law (Law).1
              Claimant worked as a full-time patrol officer with the Palmer Township
Police Department (Employer) from 1992 to November 23, 2012. While off-duty on
November 24, 2012, Claimant was in a motor vehicle accident, driving her vehicle
into a tree. Claimant was transported to a hospital and a blood test revealed that her

       1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation
for any week in which his unemployment is due to his discharge or temporary suspension from
work for willful misconduct connected with her work. 43 P.S. §802(e).
blood alcohol level (BAC) was .32%.                         Claimant was charged with several
misdemeanors, including driving under the influence (DUI), and she entered into the
Accelerated Rehabilitative Disposition (ARD) program, which permits expungement
of her criminal record upon successful completion of the program.2 As a result of the
charges, Claimant’s driver’s license was suspended for sixty days. (Findings of Fact
Nos. 1-2, 4-7.)
                Sergeant Michael Vangelo investigated the incident and subsequently
authored an investigative report concluding that Claimant violated multiple Employer
Regulations as well as what is commonly known as the Police Tenure Act.3 (Record
Item #8, Ex. 3.) On March 25, 2013, Christopher Christman, Manager of Palmer
Township, issued Claimant a termination letter. In this letter, Manager Christman
stated that Claimant’s conduct on November 24, 2012, including her arrest for DUI,
violated Employer’s Regulations Nos. 83, 85, and 106,4 and section 2 of the Police
Tenure Act, 53 P.S. §812.5 (Record Item #8, Ex. 7.)

      2
          See Pa.R.Crim.P. 320 (Expungement Upon Successful Completion of ARD Program).

      3
          Act of June 15, 1951, P.L. 586, No. 144, as amended, 53 P.S. §§811—816.

      4
          In their entirety, these Regulations state:

                83. [Employer] will not interfere in the officers [sic] personal lives.
                However, if his actions would bring disgrace to the department,
                disciplinary action may be taken against him. An officers [sic] morals
                and character should be beyond reproach at all times, on or off duty.

                                             *          *    *

                85. No officer will indulge in intoxicants while on duty, or at any
                time the uniform or part of the uniform is worn. No member of the
                department will visit a barroom while in uniform except in the line of
                duty. No officer will consume alcoholic beverages four hours prior
(Footnote continued on next page…)

                                                        2
(continued…)

               to, or report for duty while intoxicated or have an odor of alcoholic
               beverage on his breath. Members of the department who may be
               assigned to duty in civilian clothes will refrain from drinking
               alcoholic beverages except in cases of absolute necessity in collecting
               evidence or information and in no case will he drink enough to
               become intoxicated. If at any time an officer drinks alcohol
               beverages to excess and causes embarrassment or brings disgrace or
               criticism on the department, whether on duty or off, disciplinary
               action may be taken.

                                          *       *      *

               106. No officer shall fail to possess and maintain a current and valid
               Pennsylvania drivers [sic] license. Officers who[se] license is [sic]
               suspended may be subject to suspension without pay for the specified
               time or dismissal.

(Record Item #8, Ex. 4.)

        At the end of the Regulations is a disciplinary matrix that lists the discipline for a first
offense violation of Regulation 85 as a reprimand to thirty-day suspension, and for a first offense
violation of Regulation 106 as a thirty to ninety day suspension. Id. Regulation 83 is not cataloged
within the matrix, which states that those Regulations “not listed are informational or contain
disciplinary directives.” Id.

       5
          Section 2 of the Police Tenure Act provides for the termination of certain, full-time police
officers and states as follows:

               No person employed as a regular full time police officer in any police
               department of any township of the second class, or any borough or
               township of the first class within the scope of this act, with the
               exception of policemen appointed for a probationary period of one
               year or less, shall be suspended, removed or reduced in rank except
               for the following reasons: (1) physical or mental disability affecting
               his ability to continue in service, in which case the person shall
               receive an honorable discharge from service; (2) neglect or violation
               of any official duty; (3) violating of any law which provides that such
               violation constitutes a misdemeanor or felony; (4) inefficiency,
               neglect, intemperance, disobedience of orders, or conduct
(Footnote continued on next page…)

                                                  3
                Following her termination, Claimant applied for unemployment
compensation benefits. On April 22, 2013, the local service center determined that
Claimant was ineligible for benefits under section 402(e) of the Law. Claimant
appealed, and the referee convened a hearing.
                After receiving evidence, and by decision and order dated June 14, 2013,
the referee found that Claimant’s job was subject to the Police Tenure Act, which
states that an officer may be terminated from employment when the officer violates
any law constituting a misdemeanor or felony or engages in conduct unbecoming an
officer. The referee further found that on November 24, 2012, Claimant was in a
motor vehicle accident when her vehicle collided with a tree; Claimant’s BAC was
.32%; Claimant was charged with several misdemeanors, including DUI; Claimant’s
driver’s license was suspended for sixty days as a result of the charges; and Claimant
entered into the ARD program and will have the DUI charges expunged from her
record when she successfully completes that program. (Findings of Fact Nos. 2, 4-7,
9.)
                The referee noted that “the above findings represent the competent
evidence and credibility determinations” that she made as part of her decision.
(Referee’s decision at 2.)         Based on these findings, the referee concluded that


(continued…)

                unbecoming an officer; (5) intoxication while on duty. A person so
                employed shall not be removed for religious, racial or political
                reasons. A written statement of any charges made against any person
                so employed shall be furnished to such person within five days after
                the same are filed.

53 P.S. §812.




                                                 4
Claimant engaged in willful misconduct under section 402(e) of the Law, thus
rendering her ineligible for benefits.           Specifically, the referee determined that
Claimant’s conduct violated Employer’s work rules, Regulation 106 and the Police
Tenure Act.6
               Thereafter, Claimant appealed to the Board. On August 28, 2013, the
Board affirmed, adopting and incorporating the referee’s findings and conclusions.7
(Board’s decision at 1.)
               On appeal to this Court,8 Claimant asserts that the Board erred in relying
on the Police Tenure Act to conclude that she engaged in willful misconduct.
Claimant notes that her DUI arrest and charge may be expunged upon successful
completion of the ARD program and contends that her actions do not violate the
Police Tenure Act. Claimant also argues that the evidence failed to establish a
connection between her off-duty misconduct and her job performance.
               Section 402(e) of the Law provides that an employee is ineligible for
benefits where the employee is discharged “for willful misconduct connected with
[her] work.” 43 P.S. §802(e). Although the Law does not define the term “willful
misconduct,” our courts have construed it as including: (1) the wanton or willful

       6
        The referee did not rule on Claimant’s purported violations of Regulations 83 and 85 or
determine whether such violations could serve as an independent basis upon which to conclude that
Claimant engaged in willful misconduct.

       7
         In unemployment cases, the Board is the ultimate fact-finder, empowered to make all
determinations as to witness credibility and evidentiary weight. Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).

       8
         Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether findings of fact are supported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.




                                                5
disregard of the employer’s interests; (2) a deliberate violation of the employer’s
rules; (3) the disregard of standards of behavior which an employer can rightfully
expect from 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. Guthrie v. Unemployment Compensation
Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999).9
              This Court has applied section 402(e) of the Law “to off-premises
conduct to hold that claimants were ineligible for benefits.”                   Maskerines v.
Unemployment Compensation Board of Review, 13 A.3d 553, 557 & n.8 (Pa.
Cmwlth. 2011) (collecting cases). “Where an employer seeks to deny a discharged
employee unemployment compensation benefits for a work rule violation pursuant to
[s]ection 402(e), the employer must prove only that the work rule existed and that the
employee violated it.” Id. at 557. If an employer meets this burden, the employer is
not required to demonstrate that the employee’s off-duty conduct extended to her job
performance. Id.
              Section 2 of the Police Tenure Act vests a full-time police officer of any
township of the second class, or any township or borough of the first class having a
police force of less than three members, with a due process right to continued
employment. 53 P.S. §812; see section 1 of the Police Tenure Act, 53 P.S. §811; see
generally George v. Moore, 147 A.2d 148 (Pa. 1959); Pavonarius v. City of
Allentown, 629 A.2d 204 (Pa. Cmwlth. 1993). Correspondingly, section 2 of the
Police Tenure Act sets forth the only circumstances under which a full-time police

       9
         The burden of proving willful misconduct rests with the employer. Guthrie, 738 A.2d at
521. Whether an employee’s conduct constitutes willful misconduct is a question of law subject to
this Court’s review. Id.




                                               6
officer of a township such as Palmer Township may be removed from office. Upper
Makefield Township v. Pennsylvania Labor Relations Board, 753 A.2d 803, 807 (Pa.
2000). As a matter of law, the Police Tenure Act is incorporated into Claimant’s
employment contract with Employer and supplies implied terms and bases for
termination apart from those detailed in the Regulations. See DePaul v. Kauffman,
272 A.2d 500, 506 (Pa. 1971) (“[T]he laws in force when a contract is entered into
become part of the obligation of contract with the same effect as if expressly
incorporated in its terms.”). Cf. Tegzes v. Bristol Township, 472 A.2d 1386, 1388-89
(Pa. 1984). Accordingly, section 2 of the Police Tenure Act constitutes a work rule
of Employer.
            Here, Claimant was arrested and charged with DUI, her BAC was .32%,
and she entered into an ARD program. Claimant’s conduct in committing a DUI
contravened section 2 of the Police Tenure Act, which, among other things, permits
dismissal of a police officer where the officer “violates” any law that is graded as a
misdemeanor. 53 P.S. §812. Although Claimant relies on the fact that her arrest and
charge for DUI may be expunged upon successful completion of the ARD program,
in Davis v. Civil Service Commission of the City of Philadelphia, 820 A.2d 874, 877-
78 (Pa. Cmwlth. 2003), this Court concluded that an ARD is irrelevant to employee
discipline because the conduct that resulted in the dismissal, as opposed to the
outcome of the criminal charges, is what determines whether there is just cause for
the dismissal. Id. Additionally, under Pennsylvania law, the “statutory requirements
for participation in ARD imply that a defendant who accepts ARD has indeed
committed a DUI offense, i.e., has violated [s]ection 3802 [of the Vehicle Code].”




                                          7
Whalen v. Department of Transportation, Bureau of Driver Licensing, 32 A.3d 677,
684-85 (Pa. 2011).10
              For these reasons, we must conclude that the Board properly determined
that Claimant violated Employer’s work rule, section 2 of the Police Tenure Act,
when she committed an off-duty DUI.                    Consequently, Employer need not
demonstrate that Claimant’s off-duty misconduct extended to her performance on the
job. Maskerines, 13 A.3d at 557 (holding that, because the claimant was discharged
for a work rule violation under section 402(e) of the Law, the employer was not
required to show that the claimant’s possession of marijuana off-premises directly
affected his job performance); see Derry v. Unemployment Compensation Board of
Review, 693 A.2d 622, 624-25 (Pa. Cmwlth. 1997) (holding that the claimant’s off-
duty conduct violated the employer’s reasonable work rule and rendered him
ineligible for benefits under section 402(e) of the Law).11
              Claimant also asserts that the evidence establishes that Employer did not
discharge her for DUI, but, instead, terminated her employment on the basis of
gender and disability discrimination. While Claimant adduced some evidence to this

       10
          Further, an ARD is statutorily defined as a “prior offense” for purposes of the ignition
interlock statute, Whalen, 32 A.3d at 685, and as a “conviction” for sentencing purposes on
subsequent DUIs. Commonwealth v. Pleger, 934 A.2d 715, 719 (Pa. Super. 2007).

       11
          Claimant further asserts that Employer violated its own progressive disciplinary policy
under the Regulations. However, as previously noted, the Police Tenure Act is incorporated into
Claimant’s employment contract with Employer and supplies implied terms and bases for
termination in addition to those detailed in the Regulations. “[A] claimant who has been discharged
for multiple reasons is disqualified from receiving benefits even if only one of those reasons
amounts to willful misconduct.” Glenn v. Unemployment Compensation Board of Review, 928
A.2d 1169, 1172 (Pa. Cmwlth. 2007). Having concluded that the evidence supports the Board’s
determination that Claimant’s conduct amounted to willful misconduct under the Police Tenure Act,
this Court need not consider whether Employer properly terminated Claimant per its Regulations.
See id.



                                                8
effect, the Board did not base its findings on that evidence. In unemployment cases,
the Board is the ultimate fact-finder, empowered to make all determinations as to
witness credibility and evidentiary weight. Peak v. Unemployment Compensation
Board of Review, 501 A.2d 1382, 1383 (Pa. 1985). “It is irrelevant whether the
record contains evidence to support findings other than those made by the fact-finder;
the critical inquiry is whether there is evidence to support the findings actually
made.” Ductmate Industries, Inc., v. Unemployment Compensation Board of Review,
949 A.2d 338, 342 (Pa. Cmwlth. 2008).
              Here, it was within the exclusive province of the Board, as fact-finder, to
reject Claimant’s testimony regarding alleged discrimination in favor of finding that
Employer discharged her for willful misconduct. Because Claimant’s assertions in
this regard essentially challenge the Board’s credibility and weight determinations,
and substantial evidence supports the Board’s necessary findings, Claimant’s
arguments necessarily fail. Peak, 501 A.2d at 1383.12
              Accordingly, we affirm.



                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge



       12
          Finally, Claimant contends that she made an unintentional mistake and that the evidence
does not support a finding that her conduct was intentional or deliberate. While mere negligence is
insufficient to prove willful misconduct, Navickas v. Unemployment Compensation Review Board,
787 A.2d 284, 289-90 (Pa. 2001), Claimant does not argue that she became intoxicated
involuntarily, and this Court has previously held “that an employee must bear the responsibility for
the consequences of his drinking.” Morrell v. Unemployment Compensation Board of Review, 485
A.2d 1214, 1216 (Pa. Cmwlth. 1984). Accord Jamison v. Unemployment Compensation Board of
Review, 602 A.2d 420, 422 (Pa. Cmwlth. 1992).



                                                 9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Susan E. Siegfried,                   :
                      Petitioner      :
                                      :    No. 1632 C.D. 2013
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :
                 Respondent           :


                                   ORDER


            AND NOW, this 13th day of August, 2014, the August 28, 2013 order
of the Unemployment Compensation Board of Review is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
