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BROWNING-FERRIS INDUSTRIES PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (07/19/89)

decided: July 19, 1989.

BROWNING-FERRIS INDUSTRIES OF PENNSYLVANIA, INC., PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW.

COUNSEL

John F. Hooper, John Lucas, Meyer, Unkovic & Scott, Pittsburgh, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, James K. Bradley, Asst. Counsel, Harrisburg, for respondent.

Crumlish, Jr., President Judge, Colins, J., and Narick, Senior Judge.

Author: Colins

[ 127 Pa. Commw. Page 325]

Browning-Ferris Industries of Pennsylvania, Inc., (employer) petitions for review of an order of the Unemployment Compensation Board of Review (Board) granting unemployment compensation benefits to Daniel L. Olivis (claimant). We affirm.

Claimant was employed as a disposal truck driver for employer for a period of eleven (11) years. On June 9, 1988, claimant had a rear end collision with another truck, causing damage to both vehicles and personal injury to the other driver. He was suspended pending an investigation of the circumstances surrounding the accident and was subsequently discharged.

The referee found*fn1 that the claimant agreed that he had exercised bad judgment in determining the rate of speed of the vehicle in front of him. She further found that claimant had a prior rear end collision in 1983 but that in January 1988 employer gave a recognition award to the claimant for 325 accident-free days and that in March 1988 the claimant was one of eight employees congratulated for having gone 325 days without an accident. Finally, the referee found that claimant was discharged by employer for the accident that he had on June 9, 1988.

Employer submits that the referee and Board erred in failing to consider claimant's history of accidents while employed with employer's company. We disagree. The

[ 127 Pa. Commw. Page 326]

    referee noted that the single accident of June 9, 1988 was listed by the employer as the sole reason for discharge in the discharge letter sent to claimant.*fn2 The testimony of Mr. Cecil Medrick, employer's Vice President and General Manager, who authored the discharge letter, also supports the fact that the discharge was based solely upon the accident of June 9, 1988. In his summary of interview with the Office of Employment Security (OES) claimant listed this accident as the reason for his discharge, and OES' determination refers to a single accident.

This accident was the sole ground upon which OES ruled and therefore, the referee and the Board properly limited their inquiry to this ground. See Bilsing v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 199, 382 A.2d 1279 (1978).

For each of the above reasons, employer's argument that claimant's history of accidents constitutes willful misconduct and that the referee and Board erred in not considering the evidence to that effect, must fail. Employer never listed claimant's past record of accidents as the reason for his discharge in the discharge letter nor in the OES documents. The Board submits, and we agree, that these other occurrences should not, therefore, be considered upon review. See Radio Station WVCH v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 23, 430 A.2d 737 (1981); Panaro v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 19, 413 A.2d 772 (1980) (employer ...


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