Appeal from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Nevin L. Goodman, No. B-206467.
Michael Goldberg, for petitioner.
Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Craig and Colins, sitting as a panel of three. Opinion by Judge Rogers.
[ 83 Pa. Commw. Page 135]
Section 402(e) of the Unemployment Compensation Law*fn1 provides that an employe shall be ineligible for compensation for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
The petitioner for review of a Board of Review's (board) decision in this case is a claimant who was discharged from his employment as a truck driver for having been involved in two accidents, characterized by his employer and the board as preventable, within a one-month period. The question was and is that of whether the number and nature of the petitioner's accidents established that the claimant had committed an act or acts of willful misconduct.
[ 83 Pa. Commw. Page 136]
Whether acts constitute willful misconduct is a question of law. Nyzio v. Lee Tire & Rubber Co., 26 Pa. Commonwealth Ct. 600, 364 A.2d 981 (1976).
First, neither the employer nor the unemployment compensation authorities have explained what they mean by the word "preventable"; however, it may be fairly inferred that it is intended to suggest that the claimant was at fault. Of course the mere use of preventable as a modifier of the word accident does not establish the claimant's negligence. The employer has the burden of proving that the claimant committed acts of negligence sufficient to demonstrate willful misconduct. Parke v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 382, 393 A.2d 62 (1978).
A source case is Sabatelli Unemployment Compensation Case, 168 Pa. Superior Ct. 85, 76 A.2d 654 (1950), where the claimant, a bus driver, had been discharged, after warnings, for failing properly to register fares. The board found that the claimant had carelessly disregarded his employer's interests. The claimant on appeal contended that because the board also found that he was not trying to defraud his employer -- that is, that he had no actual intent to do harm -- his admitted misconduct was merely negligent, not willful misconduct. The Superior Court in upholding the board's conclusion that the claimant was guilty of willful misconduct, responded to the claimant's thesis in the following manner:
Claimant's argument, however, is only a half truth. Negligence consists of inattention or inadvertence. Willfulness exists where the injury to the employer, though realized, is so "recklessly disregardful" that, even though there be no actual intent, there is at least a willingness to inflict harm, a ...