Walton v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 23 April 1986
• Parties: Robert A. WALTON, Petitioner, v. COMMONWEALTH of Pennsylvania UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 380

508 A.2d 380

96 Pa.Cmwlth. 472

Robert A. WALTON, Petitioner, v. COMMONWEALTH of Pennsylvania UNEMPLOYMENT COMPENSATION BOARD

OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Submitted On Briefs Nov. 20, 1985.

Decided April 23, 1986.

Lawrence Kemp, Kemp & Kemp, New Kensington, for petitioner.

Charles Hasson, Charles Donahue, Associate Counsel Unemployment Board of Review, Harrisburg, for respondent.

Before MacPHAIL, DOYLE and BARRY, JJ.

DOYLE, Judge.

This is the appeal of Robert A. Walton (Claimant) from an order of the Unemployment Compensation Board of Review (Board), which affirmed the decision of the referee denying Claimant benefits under Section 402(e) of the Unemployment Compensation Law, ¹ 43 P.S. § 802(e) (willful misconduct).

Claimant was last employed by Browning-Ferris Industries (Employer) as an operator of a commercial trash truck. Between the period of April, 1983 and November, 1983, Claimant was involved in eight different accidents which resulted in damage to the Employer's truck. ² During November of 1983, Claimant received a warning letter from his Employer concerning his accidents, and was required to undergo retraining on the safe operation of his truck.

On December 15, 1983, Claimant drove his truck under a bridge with the truck's top lid in a partially opened position. Claimant noticed that the lid was open by use of the cab's periscope but could not stop the truck in time to avoid collision with the bridge. Claimant was immediately suspended without pay pending an investigation of this accident. On December 28, 1983, Claimant was terminated from his position on the basis of his involvement in an excessive number of accidents, pursuant to an Employer policy.

Claimant's application for unemployment compensation benefits was denied by the Office of Employment Security. On appeal to the referee, the referee found that Claimant's termination was due to his willful misconduct, and denied compensation on that basis. The referee's determination was upheld by the Board, and this appeal followed.

In determining whether a claimant's vehicular accidents constitute a basis for disqualifying willful misconduct this Court has stated that "a series of accidents, attributable to negligence, occurring periodically and with consistent regularity, which produce substantial financial loss to the employer ... will support the conclusion that an employe is guilty of willful misconduct." Coulter v. Unemployment Compensation Board of Review, 16 Pa.Commonwealth Ct. 462, 466, 332 A.2d 876, 879 (1975). We also observed in Coulter that "[a] single dereliction or a minor and casual act of negligence or carelessness does not constitute willful misconduct." Id. And, in Schappe v. Unemployment Compensation Board of Review, 38 Pa.Commonwealth Ct. 249, 392 A.2d 353 (1978), we noted:

While the number of accidents cannot be said to be unimportant in a determination of whether such accidents constitute willful misconduct, we do not believe that the number is the sole and exclusive criterion. Rather, the controlling issue is whether the nature of the Claimant's negligence is such as to demonstrate "manifest culpability, wrongful intent, evil design or intentional and substantial disregard for the employer's interests or the employee's duties and obligations." Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Cmwlth. 90, 309 A.2d 165 (1973), supra. (Emphasis added). Obviously, each case will have to be decided on its own facts, irrespective of the number of accidents involved.

38 Pa.Commonwealth Ct. at 253, 392 A.2d at 355-56.

Thus, under the criteria enunciated in Coulter and Schappe, it is necessary to examine each case on its facts in order to ascertain on which side of the line it falls. In Coulter, where there was but a single accident in which the claimant damaged his employer's truck by failing to negotiate a turn on a bridge which was considered "dangerous for drivers", we held that Coulter was not disqualified from receiving benefits under Section 402(e). But in Seyler v. Unemployment Compensation Board of Review, 85 Pa.Commonwealth Ct. 392, 481 A.2d 1262 (1984), where claimant's actions resulted in two negligent accidents in six months, we held that disqualifying willful misconduct had been shown because the record demonstrated a lack of care for the employer's equipment. Similarly, in Schappe, where the claimant was involved in two negligent accidents within 30 days, the claimant was denied benefits because of a lack of care for his employer's equipment. Applying the instant facts ...