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Moran v. Unemployment Compensation Board of Review

April 27, 2009

EDWARD MORAN, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: December 26, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Edward Moran (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee). In that decision, the Referee found that F. A. Bartlett Tree Expert Company's (Employer) appeal of the Lancaster Unemployment Compensation Service Center's (Service Center) determination was timely filed, and that Claimant committed willful misconduct by failing to follow Employer's established safety rules. Claimant argues that Employer's appeal was not timely filed because the only evidence of the appeal's date of mailing is a private postage meter mark, and the appeal was not received by the Unemployment Compensation Bureau (Bureau) within the time for appeal. Claimant also argues that his conduct only constituted negligence, and not willful misconduct, under Section 402(e) of the Unemployment Compensation Law (Law).*fn1

Claimant filed for unemployment benefits on November 4, 2007. The Service Center granted Claimant's application for benefits on November 30, 2007. Employer mailed its Petition for Appeal to the Bureau's Employers' Charge Unit in an envelope with a private postage meter mark dated December 17, 2007. The Bureau received the Petition for Appeal on December 19, 2007.*fn2 A hearing was held before the Referee, who reversed the Service Center's determination. Claimant appealed the Referee's decision to the Board, which affirmed the Referee and made the following findings of fact:

1. The claimant last worked for F. A. Bartlett Tree Expert Co. as a tree climber from April 11, 2005, until November 8, 2007, in a full-time position at a final rate of pay of $20 an hour.

2. Prior to the final incident for which the claimant was discharged, the claimant received warnings for two separate incidents in which the claimant had failed to secure limbs that he was trimming in violation of the employer's policies.

3. The claimant was aware of the employer's policies and procedures regarding tree trimming and the handling of equipment, and the employer's policies are reviewed with its employees on a regular basis.

4. The final incident resulted from the claimant's failure to put on the emergency brake when parking on a customer's sloped driveway and failing to place a tire chock behind the wheel of the work truck.

5. The truck began rolling back, and the claimant tried to climb into the truck to stop it but was unable to do so before the truck jackknifed and caused some damage to property and equipment.

6. The claimant admitted he felt that it was a big job and was in a hurry to complete the work within the required time.

7. The claimant returned to the truck to tell the foreman of the work situation and the truck started to move.

8. The employer's appeal was timely filed.

(Referee's Decision at 2.) We note that "Claimant's position that Employer's appeal was untimely has nothing to do with whether the appeal had been misdirected to the ...


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