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JOHN TROUT v. COMMONWEALTH PENNSYLVANIA (03/29/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 29, 1982.

JOHN TROUT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John Trout, No. B-191260.

COUNSEL

Robert D. Flaherty, for petitioner.

Steven J. Neary, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 65 Pa. Commw. Page 478]

John Trout (Claimant) appeals here from a decision of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law*fn1 (Law), which disqualifies individuals discharged for willful misconduct.

At the time of his discharge, Claimant was employed as a truck driver. The reason given for his discharge was his involvement in three accidents in less than a year.

The facts of this case are not disputed. Claimant admitted that he was involved in the three accidents in question. In fact, he further testified that he was involved in other accidents not at issue here while he was driving his employer's truck. He stated: "there were some fender benders." Claimant's testimony concerning the three accidents tracks perfectly with the referee's findings of fact which were adopted by

[ 65 Pa. Commw. Page 479]

    the Board. Claimant's recitation of the facts is substantial evidence to support those findings. It is clear from the record that Claimant was negligent in discharging his duties*fn2 and that he had been warned of the consequences of his negligent conduct prior to his discharge.

Since we have determined that substantial evidence exists in the record as a whole to support the Board's findings, we must now resolve whether the referee and the Board were correct in concluding that three accidents in less than a year, which were the result of Claimant's negligence, and caused substantial damage to the Employer's property, is willful misconduct. We hold that Claimant's actions did constitute willful misconduct.

In Coulter v. Unemployment Compensation Board of Review, 16 Pa. Commonwealth Ct. 462, 466, 332 A.2d 876, 879 (1975) this Court stated that:

A single dereliction or a minor and casual act of negligence or carelessness does not constitute willful misconduct. Rather, it is a series of accidents, attributable to negligence, occurring periodically and with consistent regularity, which produce substantial financial loss to the employer which will support the conclusion that an employee is guilty of willful misconduct.

As we held in Schappe v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 249, 253-254, 392 A.2d 353, 356 (1978):

Obviously, each case will have to be decided on its own facts, irrespective of the number of accidents

[ 65 Pa. Commw. Page 480]

    involved. Here, the Claimant had a duty and obligation to preserve his employer's equipment. We must conclude that even though there were but two (2) accidents, they occurred within such a short interval of time and were so demonstrative of the Claimant's lack of care for his employer's equipment that they amounted to willful misconduct.

In the instant appeal as in Schappe, the Claimant's negligent driving exhibited total disregard for his Employer's equipment and such conduct amounts to willful misconduct making Claimant ineligible for unemployment compensation benefits.

Affirmed.

Order

And Now, this 29th day of March, 1982, it is ordered that the order of the Unemployment Compensation Board of Review dated January 8, 1981 and numbered B-191260, is hereby affirmed.

Disposition

Affirmed.


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