Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert E. Bogan, No. B-145425.
Michael R. Muth, with him Katz, Katz and Muth, for petitioner.
William Dade, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
Employer Yellow Cab Company has appealed from an order of the Unemployment Compensation Board
of Review (Board), which affirmed a referee's decision that claimant's dismissal was not due to acts that amounted to "willful misconduct" under Section 402(e) of the Unemployment Compensation Law,*fn1 and therefore, that he was not disqualified from benefits under the Law.
The employer, to justify the dismissal, alleged the occurrence of seven "accidents" between December 31, 1976 and January 30, 1977 as proof that claimant did not meet the degree of driving care required of a taxi driver. On this appeal, the employer essentially argues that the series of incidents should constitute willful misconduct, particularly because of the higher degree of care to which the employer, a common carrier, is held under general negligence law.
Employer bears the burden of proving that a discharge of an employee occurred due to the employee's willful misconduct, Coulter v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 462, 332 A.2d 876 (1975). Whether or not an employee's actions constitute willful misconduct is a question of law. Nyzio v. Lee Tire & Rubber Co., 26 Pa. Commonwealth Ct. 600, 364 A.2d 981 (1976).
In another taxi case, our Superior Court has included as willful misconduct ". . . a series of accidents, attributable to negligence, occurring periodically and with consistent regularity, which produces substantial loss to the employer [which] will support the conclusion that the employe has recklessly or carelessly disregarded his duties, or has been indifferent to the requirements of his occupation. . . ." Allen Unemployment Compensation Case, 168 Pa. Superior Ct. 295, 298, 77 A.2d 889, 890 (1951). (Emphasis added.)
Of the seven "accidents" the employer alleged, the actual occurrence of three of them was disputed. As to the remaining incidents, the record supports the conclusion that all but one involved getting stuck in the snow. In the remaining incident, claimant locked bumpers with another cab in the parking lot. The employer produced no evidence either of claimant's ...