Opinion
No. 1394 C.D. 2012
03-15-2013
Steven O. Sirota, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Steven O. Sirota (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of a Referee that he is ineligible for unemployment compensation benefits under Section 402(e) of the Unemployment Compensation Law (Law). We affirm.
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 "[a]n employe shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge ... from work for willful misconduct connected with his work...."
Claimant was employed as a full-time tow truck driver associate by AAA Mid-Atlantic (Employer) but was discharged for willful misconduct by violating Employer's policy requiring all employees to notify dispatch or a supervisor on duty in the event of an accident and to submit a statement. On October 29, 2011, Claimant was driving a company tow truck when, due to inclement weather, the company vehicle slid off the road into the grass on the berm. The tow truck was stuck in the grass and Claimant was unable to drive away when he flagged down a co-worker to tow the truck out of the grass to the street. Claimant failed to report the accident even though Employer had a policy requiring all employees to notify dispatch or a supervisor on duty in the event of an accident and to submit a statement. After Employer became aware of the incident and questioned Claimant, Claimant acknowledged the incident but felt it was not necessary to be reported based on his own assessment. Employer investigated the scene of the accident, found property damage to the grassy area caused by Claimant's tow truck, and Claimant was discharged for failing to report the accident in accordance with Employer's policy. Claimant applied to the Lancaster UC Service Center for benefits but was denied benefits under Section 402(e) of the Law because he was discharged for willful misconduct. Claimant appealed.
The employer has the burden of proving willful misconduct. Guthrie v. Unemployment Compensation Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Willful misconduct has been defined as: (1) wanton or willful disregard for an employer's interests; (2) deliberate violation of an employer's rules; (3) a disregard for the standards of behavior which an employer can rightfully expect of an employee; or (4) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations. Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968 (Pa. Cmwlth. 2010). When a claimant is terminated for a work-rule violation, the employer has the burden to establish the rule existed, the claimant knew of the rule, and the claimant violated the rule. Id. The failure to report an accident as required by an employer's policy constitutes willful misconduct. See Jefferis v. Unemployment Compensation Board of Review, 422 A.2d 1232, 1233 (Pa. Cmwlth. 1980) (holding that a claimant's failure to notify the employer of an accident as required by a work rule constitutes willful misconduct); Hogarty v. Unemployment Compensation Board of Review, 168 A.2d 794, 795-96 (Pa. Super. 1961) (holding that a claimant's violation of a work rule requiring certain reports to be filed constitutes willful misconduct). See also Lindsay v. Unemployment Compensation Board of Review, 424 A.2d 1014, 1015 (Pa. Cmwlth. 1981) (holding that a claimant's failure to immediately report a work-related traffic violation as required by a work rule constitutes willful misconduct). Once the employer meets its burden, the burden shifts to the claimant to prove he had good cause for his actions. Guthrie, 738 A.2d at 522. A claimant has good cause if his actions are reasonable and justifiable under the circumstances. Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006). Whether an employee's conduct constitutes willful misconduct is a question of law subject to our review. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 426 (2003).
Claimant filed a late appeal of the Service Center's determination and, following a hearing on the issue of timeliness, the Referee issued a decision dismissing Claimant's appeal. However, the Board determined that the appeal was late due to administrative error and remanded the matter to the Referee for a hearing on the merits.
Before the Referee, Shawn Bowser (Bowser), a tow truck operator for Employer, testified that on October 29, 2011, he saw Claimant's tow truck in a grassy area as he was driving by and Claimant flagged him down for assistance. Bowser stated that Claimant explained that the tow truck slid as he was making a left turn due to the wet surface. Bowser testified that he hooked up his chains to Claimant's tow truck and pulled it off the grass to street level. Bowser stated that Employer's policy required that an incident be reported when there is personal injury or property damage.
John Haggerty (Haggerty), Employer's Club Fleet Supervisor and Claimant's immediate supervisor, testified that Claimant did not report the October 29, 2011 accident and that he was notified of the accident a few days later by one of Employer's lead drivers. Haggerty stated that he approached Claimant and that Claimant acknowledged the incident but didn't see the necessity in reporting it because there was no damage. However, Haggerty testified that he saw the lot that suffered damage from Claimant's tow truck. Haggerty stated that he observed where Claimant's truck had been and Claimant's attempt to free the vehicle and that the damage was clearly caused by tire tracks. Haggerty testified that an incident such as Claimant's where the vehicle went off the road and needed assistance is the type that required a written statement. Haggerty stated that Claimant was made aware of this policy. Haggerty acknowledged that Service Center Exhibit 11, Employer's Policy CA-606-04 relating to reporting accidents/traffic violations, does not define what constitutes an accident, but requires reporting an accident involving property damage to Employer's insurer, CNA Insurance Group. While Claimant was on probation for three prior at-fault accidents and could have been fired for a fourth accident, Haggerty testified that Claimant was terminated for only failing to report the accident as required by Employer's policy.
William Cavanaugh (Cavanaugh), another Club Fleet Supervisor, testified that Claimant was involved in three prior incidents so Claimant was aware that he was required to report all incidents and/or damages and that Claimant signed a handbook acknowledgement form. Cavanaugh testified that there was property damage to the grassy area from the weight of Claimant's tow truck and from Claimant trying to get it out, and that he reported the property damage to Employer's insurer. Cavanaugh explained that Claimant was not fired for being involved in a fourth accident, but was fired for failing to comply with company policy by not reporting the accident. Cavanaugh acknowledged that while the policy does not define what constitutes an accident, Service Center Exhibit 14, Employer's Club Fleet Accident and Damage Procedures, addresses personal injuries or property damage.
Claimant testified that on October 29, 2011, he was traveling below the posted speed limit when his tow truck slid off the road due to snow. Claimant stated that he did not report the incident because it did not cause any personal injuries or damage to the tow truck. Claimant testified that he was never shown any document in a policy or procedure regarding what constitutes an accident, that he still didn't know what constitutes an accident, and that an accident would involve damages and no damages were caused by the incident in this case. Claimant stated that he and other drivers had been involved in prior similar incidents requiring assistance and that no one had been disciplined or fired by Employer for failing to report them. Claimant acknowledged that there was damage to the grassy area onto which his tow truck slid.
Claimant also presented the testimony of Anthony Woods (Woods), a tow truck driver formerly employed by Employer. Woods testified that he was not asked to sign a sheet indicating that he read Employer's policies and handbook and that he only became aware of the policies when they were presented to him after something happened. Woods stated that they were never told what constitutes an accident, that a driver statement was only required if there were damages or personal injury, and that no reporting was required if there was no property damage or personal injury.
Ultimately, the Referee affirmed the Service Center's determination denying benefits and the Board affirmed the Referee's decision by adopting and incorporating the Referee's findings and conclusions. The Board also specifically rejected Claimant's evidence of good cause for violating Employer's policy stating:
[T]he Board resolves the conflict in testimony in favor of the employer and finds the employer's witnesses' testimony to be credible. The Board discredits the claimant's testimony that he was not aware that he was supposed to report the accident since there was no damage to the employer's vehicle. The claimant had received three prior warnings for accidents and was aware that if he had another, he could be terminated from employment. In addition, the claimant could not know if there was damage to the underneath of the vehicle, and there was, in fact, property damage to the grass. The claimant should have reported the accident and has not credibly established good cause for his failure to do so....(Board Decision and Order at 3.) Claimant then filed the instant appeal of the Board's order.
Our review of the Board's decision is limited to determining whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed, and whether the necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169, 1171 n.1 (Pa. Cmwlth. 2007).
In this appeal, Claimant contends that the Board erred in denying benefits under Section 402(e) because it erred in its findings of fact supporting this determination; he had good cause for not reporting the incident because what constitutes an accident is not defined in Employer's policy; and denying benefits would be contrary to public policy because there was no damage to Employer's vehicle, no personal injuries, and Employer was not required to pay for property damage that Claimant caused.
Claimant also argues that the Referee's bias improperly guided her to deny benefits. However, this issue is waived because it is not contained in the Statement of Questions Involved portion of Claimant's appellate brief and it is not developed in the Argument portion of that brief. Pa. R.A.P. 2116(a), 2119; In re Estate of Ryerss, 987 A.2d 1231, 1236 n.7 (Pa. Cmwlth. 2009); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006). --------
However, the Board is the ultimate finder of fact in unemployment compensation proceedings. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1389 (1985); Chamoun v. Unemployment Compensation Board of Review, 542 A.2d 207, 208 (Pa. Cmwlth. 1988). Issues of credibility are for the Board, which may either accept or reject a witness' testimony whether or not it is corroborated by other evidence of record. Id. Findings of fact are conclusive on appeal if the record contains substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). We review the evidence in the light most favorable to the party who prevailed before the Board, drawing all logical and reasonable inferences deducible therefrom. Id. The fact that a witness has presented a version of the facts different from that accepted by the Board is not a basis for reversal if substantial evidence supports the Board's findings. Tapco, Inc. v. Unemployment Compensation Board of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994).
Thus, the Board was free to accept Employer's evidence establishing the existence of its policy requiring Claimant to report all accidents including those that only involve property damage, Claimant's awareness of the policy, its reasonableness and Claimant's violation. Additionally, the Board was free to reject Claimant's evidence that he had good cause for violating the policy because he did not believe that he was required to report an accident only resulting in property damage due to the lack of a definition in the policy. As noted above, the fact that Claimant presented a version of the facts different from that accepted by the Board is not a basis for reversal because the Board's findings are supported by substantial evidence in this case.
Moreover, the denial of benefits in this case under Section 402(e) of the Law does not violate public policy. Section 3 of the Law states that the public policy underlying the Law is to protect workers who have suffered a loss of wages because they have "[b]ecome unemployed through no fault of their own...." 43 P.S. §752. The foregoing public purpose enunciated in Section 3 must be considered in interpreting and construing all other sections of the Law. Preservation Pennsylvania v. Unemployment Compensation Board of Review, 673 A.2d 1044, 1046-47 (Pa. Cmwlth. 1996). Thus, the denial of benefits based on a claimant's disqualifying willful misconduct does not violate the public policy of the Law. Id. As outlined above, Claimant squarely falls within the disqualifying provision of Section 402(e), and the fact that he may have qualified for benefits under a different hypothetical factual scenario is not a basis upon which we may reverse the Board's order in this case.
Accordingly, the Board's order is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 15th day of March, 2013, the order of the Unemployment Compensation Board of Review dated June 22, 2012, at No. B-538421, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge