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ROBERT A. WALTON v. COMMONWEALTH PENNSYLVANIA (04/23/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 23, 1986.

ROBERT A. WALTON, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Robert A. Walton, No. B-229296.

COUNSEL

K. Lawrence Kemp, Kemp and Kemp, for petitioner.

Charles Donahue, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 96 Pa. Commw. Page 472]

This is the appeal of Robert A. Walton (Claimant) from an order of the Unemployment Compensation

[ 96 Pa. Commw. Page 473]

Board of Review (Board), which affirmed the decision of the referee denying Claimant benefits under Section 402(e) of the Unemployment Compensation Law,*fn1 43 P.S. ยง 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.*fn2 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.

[ 96 Pa. Commw. Page 474]

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, supra. (Emphasis added.) Obviously, each case will have to be decided on its own facts,

[ 96 Pa. Commw. Page 475]

    irrespective of the number of accidents involved.

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

Thus, under the criteria enunciated at 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 (9 accidents in less that one year) to the relevant law, we must conclude that Claimant's ongoing pattern of accidents demonstrates a lack of care for Employer's equipment which is far greater than that of the claimants in Schappe and Seyler and thus, Claimant here is properly deemed disqualified under Section 402(e).

The other criterion articulated in Coulter, that requiring substantial financial loss to the employer, is not a sole nor exclusive criterion for determining whether benefits should be disallowed. Assuming arguendo that none of the first nine accidents caused serious financial loss, we believe it is unreasonable to insist on waiting for a tenth accident which does cause substantial loss to

[ 96 Pa. Commw. Page 476]

    find that Claimant manifested a substantial disregard for Employer's interests.*fn3

Finally, Claimant argues that none of the accidents in which he was involved showed an intentional disregard of his duties and obligations to his Employer. Claimant contends that most of the accidents involved misjudgments of distance, and were the result of his ineptness rather than any carelessness or indifference to his Employer's interests. While it is true that Claimant's accidents were the result of his misjudgments and inability to maneuver his vehicle properly, it is also apparent from the record that the accidents could have been avoided had the Claimant exercised adequate caution in the operation of his truck. Given the recurrent nature of these accidents, all of which resulted in some damage or cost to Employer and all of which demonstrate a lack of concern for Employer's property, we are unable to conclude that the Board erred in finding that this conduct constituted willful misconduct.

Accordingly, we affirm the order of the Board which denied benefits.

Order

Now, April 23, 1986, the Order of the Unemployment Compensation Board of Review, No. B-229296, dated April 16, 1984, is hereby affirmed.

Disposition

Affirmed.


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