Opinion
No. 1267 C.D. 2013
01-27-2014
Willie Q. Dennis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Willie Q. Dennis (Claimant) petitions for review, pro se, of the May 31, 2013, order of the Unemployment Compensation Board of Review (UCBR) that denied Claimant unemployment compensation (UC) benefits. The UCBR determined that Claimant was ineligible for UC benefits under section 402(e) of the Unemployment Compensation Law (Law) due to his discharge from work for willful misconduct. 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 an employee shall be ineligible for UC benefits for any week "[i]n which his unemployment is due to his discharge . . . from work for willful misconduct connected with his work." 43 P.S. §802(e).
Claimant worked as a full-time residential advisor for Horizon House Inc., Philadelphia (Employer) from December 27, 1993, through December 31, 2012. (Findings of Fact, No. 1.) Employer had a policy requiring an employee to immediately notify his supervisor, human resources manager, or designee if his or her driver's license is revoked or suspended. (Id., No. 2.) Claimant had training in July 2005, at which time he was advised that he must inform Employer regarding any changes to his driver's license. (Id., No. 3.) Claimant was aware or should have been aware of Employer's policy. (Id., No. 4.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law. (UCBR's Order, at 1.)
On December 26, 2012, Employer ran a check on a batch of employees' driver's licenses. (Id., No. 5.) Employer found that Claimant's driver's license was suspended in January 2011, and that the Department of Transportation (DOT) mailed the official notice of the suspension. (Id., No. 6.) The report further indicated that Claimant's driver's license was again suspended in November of 2012. (Id., Nos. 7-8.) Claimant was aware of the suspensions but did not inform Employer that his driver's license had been suspended. (Id., Nos. 9-10.)
Claimant was a designated driver for Employer and drove Employer's van while his driver's license was suspended. (Id., No. 11.) On December 31, 2012, Employer discharged Claimant for failing to report his license suspensions to Employer in accordance with Employer's policy. (Id., No. 12.)
Claimant filed for UC benefits with the local service center, which denied Claimant UC benefits. Claimant appealed to the referee, who conducted an evidentiary hearing and affirmed the decision of the service center. Claimant appealed to the UCBR, which specifically discredited Claimant's testimony that he was unaware that his driver's license had been suspended, determined that Claimant violated Employer's policy by failing to notify Employer of the license suspensions, and affirmed the referee's decision. Claimant now petitions this court for review.
Our review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, Claimant contends in his brief that the UCBR erred in failing to determine whether Employer denied Claimant due process. Specifically, Claimant maintains that Employer failed to follow its own policy and provide Claimant an administrative hearing. However, Claimant failed to raise this issue in his petition for review to this court. It is well established that issues not raised in a petition for review are waived. Grever v. Unemployment Compensation Board of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010). In his petition for review, Claimant only raised the issue of "whether the violation that lead [sic] to the termination of [Claimant] amounted to willful misconduct." (Pet. for Review, 7/26/13, at 2.) Thus, Claimant waived the due process issue.
Next, Claimant contends that the UCBR erred in determining that he engaged in willful misconduct. Claimant states that he worked the third shift for Employer for 19 years and never had any serious violations. Claimant explains that his license suspension was not for a moving violation; rather, it was the fault of his brother, who drove Claimant's uninsured vehicle without Claimant's knowledge or permission, and got into an accident, damaging another vehicle. Claimant and his brother were both held liable to pay the expense incurred by the other driver's insurance company. Claimant's brother, however, defaulted on his payments. The insurance company reported the default to DOT, which suspended Claimant's license. Claimant denied having received notice of the suspension, because his daughter mishandled the mail. (Claimant's reply brief, at 4.)
Upon receiving the first suspension notice three weeks later, Claimant immediately paid his brother's arrears and paid to restore his license. The second suspension occurred for the same reason, and again Claimant did not receive the mailed notice. Claimant only found out the second time upon renewing his driver's license. Again, he paid the arrears and restoration fees. Claimant argues that he did not believe he had to report these suspensions to Employer because the suspension did not result from a moving violation and because his license was restored. (Id.)
"Willful misconduct" is defined as: (1) a wanton and willful disregard of the employer's interest; (2) a deliberate violation of the employer's rules; (3) a disregard of the standards of behavior that an employer rightfully can expect from its employees; or (4) negligence that manifests culpability, wrongful intent, evil design, or an intentional and substantial disregard of the employer's interests or the employee's duties and obligations. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010) (en banc). Once an employer meets its burden of showing willful misconduct, the burden shifts to the claimant to show that he or she had good cause. Perez v. Unemployment Compensation Board of Review, 736 A.2d 737, 741 n.5 (Pa. Cmwlth. 1999).
Here, Claimant admitted that he did not inform Employer about the license suspension, thereby proving the violation of the work rule. Although Claimant argues that he was unaware of his license suspension and that he did not have to report it to Employer because it did not result from a moving violation, the UCBR did not credit his testimony. (UCBR's Order, at 1.) ("[T]he Board specifically discredits [Claimant's] testimony that he was unaware that his driver's license had been suspended.") "[T]he UCBR is the ultimate fact finder and is empowered to make credibility determinations." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208 n.4 (Pa. Cmwlth. 2006). Questions of credibility "'are not subject to re-evaluation on judicial review.'" Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013) (citation omitted). Therefore, the UCBR did not err in finding that Claimant committed willful misconduct.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of January, 2014, we hereby affirm the May 31, 2013, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
CONCURRING OPINION BY JUDGE COHN JUBELIRER
I respectfully concur in the result only. Here, the Majority holds that Willie Q. Dennis (Claimant) has waived the issue of whether the Unemployment Compensation Board of Review (Board) erred in failing to determine whether Horizon House, Inc. (Employer) denied Claimant due process because he did not raise this issue in his Petition for Review. While I recognize that issues not raised in the Petition for Review have been considered waived, I do not believe this is appropriate where the issue was preserved at every stage below. Even though the Board argues in its brief that we should find waiver, I believe the opinion should address the first issue this pro se Claimant raises in his brief to this Court because he specifically raised this same issue before the Referee and in his appeal to the Board.
I note that Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1513(d), governing the content of an appellate jurisdiction petition for review, does not specifically provide for waiver; waiver under this Rule has been judicially created.
During the hearing before the Referee, Claimant referred to the policy submitted into the record by Employer and argued that he was entitled to administrative review before he was terminated. (Hr'g Tr. at 9-10, R. Item 9.) In his appeal to the Board, Claimant again specifically argued that, in accordance with Employer's policy, he was entitled to an upper level hearing before he was terminated. (Claimant's Appeal to Referee's Decision/Order at 2, R. Item 11.) Inexplicably neither the Referee nor the Board addressed Claimant's assertions or addressed the issue. After review of the record and Claimant's arguments, I believe that he would not have prevailed even had he preserved the issue by stating it in his Petition for Review; therefore, I concur with the Order of the Majority opinion. However, I believe that this Claimant should receive an explanation from this Court, particularly since he did not receive an explanation from the Referee or the Board, and, as such, I offer the following.
Employer submitted its policies and procedures entitled "Motor Vehicles Record Review and Approval" that establishes the "criteria for approving individuals who drive vehicles on behalf of the agency on the basis of past motor vehicle records." (Employer Separation Information, Service Center Ex. 11, R. Item 3.) Relying on Subsection C of Section IV of this policy, entitled "Requiring Review," Claimant argued before the Referee that he was entitled to administrative review before Employer could terminate his employment. (Employer Separation Information, Service Center Ex. 11 at 3; Hr'g Tr. at 9-10.) However, a review of Employer's entire policy shows that Claimant's reliance on this portion of the policy as support for his assertion is misplaced.
Employer's policy begins by setting forth the hiring process, which includes in Section II the criteria for approving an individual to drive agency vehicles and in Section III the criteria for not approving individuals whose driving records show serious violations such as driving while intoxicated, reckless driving, a total of four moving violations, or a history of accidents. (Employer Separation Information, Service Center Ex. 11 at 2-3.) Section IV provides that "[i]ndividuals whose records show violations, points, accidents or suspensions that do not exceed the limits set in Section III will be reviewed" by Employer in the following manner:
A. The record will be evaluated on the basis of the timeframe of the violation and if any injury was involved.
B. If the decision is not to hire, the applicant will receive a rejection letter.
C. If the decision is to hire, a discussion will be held with the employee regarding his or her past history and the necessity to drive in a safe and law-abiding manner. The employee will be asked to sign a statement that documents the discussion. The statement will stipulate that the employee is responsible for informing the supervisor of any changes in his or her motor vehicle
record, and that any further motor vehicle violation will be cause for administrative review which could result in termination.(Employer Separation Information, Service Center Ex. 11 at 3.) Thus, it is clear that Subsection C of Section IV of Employer's policy applies to new hires, whose past driving records are less than stellar but not sufficiently deficient to preclude hiring, and who, after beginning employment, commit another motor vehicle violation. At the time Claimant's driver's license was suspended, he had been employed by Employer for 19 years, and there is no indication he was hired subject to Subsection C. (Referee Decision, Findings of Fact ¶ 1.) Moreover, there is nothing in Employer's policy that provides that an individual subject to Subsection C is entitled to a pre-termination hearing as part of an administrative review. In addition, while Claimant argues in this appeal that he had a "right to an upper level hearing to exhaust his administrative remedies," he does not cite to any specific policy setting forth such a right or where this policy may be found in the record. (Claimant's Br. at 4.) As such, it does not appear that Claimant's due process rights were violated by Employer not providing him with an administrative hearing or review prior to his termination.
D. Individuals falling in this category will have their motor vehicle records reviewed at least once per year.
E. Individuals already employed will have a formal review of their personnel and driving records whenever they are involved in a chargeable accident or receive a motor vehicle violation to determine suitability to drive and continue employment.
I note that Claimant has attached a letter from Employer, dated February 19, 2013, addressed to someone other than Claimant to show that an at-will employee was provided an upper level hearing pursuant to a grievance process prior to the employee's termination by Employer. However, this letter was not submitted into the certified record during the April 5, 2013 hearing before the Referee. Accordingly, this Court may not consider this letter. It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case. Smith v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993). --------
/s/ _________
RENÉE COHN JUBELIRER, Judge