The opinion of the court was delivered by: James R. Kelley, Senior Judge
Submitted: January 14, 2011
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION BY SENIOR JUDGE KELLEY
Diane Chapman (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) reversing the decision of a Referee, and determining that Claimant is ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.
Claimant filed a claim for unemployment compensation benefits upon the termination of her employment as a registered nurse with Lifequest Nursing Center (Employer). The Allentown UC Service Center representative concluded that Claimant had been discharged for reasons that constitute willful misconduct under Section 402(e) of the Law based upon her use of a cell phone while working in violation of Employer's work rule prohibiting such cell phone use. As a result, unemployment compensation benefits were denied.
Claimant appealed this determination and a hearing was conducted before a Referee. See N.T. 2/16/10*fn2 at 1-34. On May 7, 2010, the Referee issued a decision disposing of the appeal in which she determined that Claimant had been discharged for reasons that do not constitute willful misconduct under Section 402(e) of the Law. As a result, the Referee issued an order reversing the Service Center's determination, and granting Claimant unemployment compensation benefits.
On May 24, 2010, Employer filed an appeal of the Referee's decision with the Board. On July 27, 2010, the Board issued a decision in which it made the following relevant findings of fact: (1) Employer has a progressive disciplinary policy, however, Employer may immediately discharge an employee who engages in conduct that could cause a life threatening situation; (2) Employer has a policy prohibiting the use of cell phones while on duty; (3) Claimant was aware of this policy as she had been warned for violating the policy on June 2, 2009; (4) on November 14, 2009, Claimant used her personal cell phone to post comments on her Facebook page about a co-worker who had accidentally soiled her pants at work; (5) Employer discovered the comments and investigated Claimant's work activities at the time the comments were posted; (6) Employer's records indicate that Claimant had been distributing medications to patients while the comments were posted; (7) Employer confronted Claimant and she admitted posting the comments using her cell phone while on duty, and did not assert that she was on a break when the comments were posted; and (8) Employer discharged Claimant for engaging in conduct that could cause a life threatening situation by using her cell phone while distributing patient medications. Board Decision at 1-2.
Based on the foregoing, the Board concluded:
The claimant was aware of the employer's policy prohibiting the use of cell phones while on duty, yet she violated that policy despite having been previously warned for doing so. The employer credibly explained that it may advance through the progressive disciplinary policy and immediately discharge where the employee engages in conduct that could create a life threatening situation. The Board further credits the employer's testimony that the claimant admitted to using her cell phone while on duty, and that she made no verbal assertion of being on a break at the time the comments were posted. The employer's documentation further corroborates that the claimant was actively engaged in the distribution of patient medications while using her cell phone for a menial purpose. The claimant's distraction with the cell phone certainly could have placed patients at risk of serious harm. As such, the Board concludes that the employer has met its burden of proving willful misconduct in connection with the claimant's discharge. The Board discredits the claimant's assertion that she was on a break when she used her cell phone. Accordingly, she has not justified her conduct.
Board Decision at 2-3. Accordingly, the Board issued an order reversing the Referee's decision and denying Claimant unemployment compensation benefits. Id. at 3. Claimant then filed the instant petition for review.*fn3
In this appeal, Claimant contends the Board erred as a matter of law in determining that Employer had sustained its burden of proving that Claimant was ineligible for compensation benefits under Section 402(e) of the Law. More specifically, Claimant asserts*fn4 : (1) there is not sufficient substantial evidence demonstrating the existence of a work policy prohibiting the use of cell phones while on duty, that Claimant was aware of such a policy, or that she violated the policy; (2) the Board erred in relying on Employer's illegal search of her Facebook page; and (3) the Board erred in overriding the credibility determinations made by the Referee.
As noted above, pursuant to Section 402(e) of the Law, an employee is ineligible for unemployment compensation benefits when she has been discharged from work for willful misconduct connected with her work. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518 (Pa. Cmwlth. 1999). The burden of proving willful misconduct rests with the employer. Id. Whether an employee's conduct constitutes willful misconduct is a question of law subject to this Court's review. Id.
Although willful misconduct is not defined by statute, it has been described as: (1) the wanton and willful disregard of the employer's interests; (2) the deliberate violation of rules; (3) the disregard of standards of behavior that an employer can rightfully expect from his 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. Id. (citing Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165, 168-169 (Pa. Cmwlth. 1973)).
Thus, a violation of an employer's work rules and policies may constitute willful misconduct. Id. An employer must establish the existence of the work rule and its violation by the employee. Id. If the employer proves the existence of the rule, the reasonableness of the rule, and the fact of its violation, the burden of proof shifts to the employee to prove that she had good cause for her actions. Id. The ...