         IN THE COMMONWEALTH COURT OF PENNSYVLANIA

Winston Banks,                                 :
                      Petitioner               :
                                               :
              v.                               : No. 619 C.D. 2016
                                               : Submitted: November 18, 2016
Unemployment Compensation                      :
Board of Review,                               :
                 Respondent                    :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                         FILED: December 20, 2016

              Winston Banks (Mr. Banks) has filed a petition for review contesting
the March 25, 2016 order of the Unemployment Compensation Board of Review
(Board) affirming the denial of unemployment compensation benefits pursuant to
Section 402(e) of the Unemployment Compensation Law1 (Law) because Mr.
Banks had been terminated from employment with the Pennsylvania Department
of Transportation (PennDOT) for willful misconduct.
              Mr.    Banks      initially   appealed     the   denial    of   unemployment
compensation by the Scranton Unemployment Compensation Service Center to a
Referee. At the December 30, 2015, hearing before the Referee, Mr. Banks and
four witnesses for PennDot appeared and testified.                Following the Referee’s

1
  Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any
week in which his or her unemployment is due to discharge for willful misconduct connected to
his or her work. 43 P.S. § 802(e).
decision denying benefits, Mr. Banks appealed to the Board.                       Distilled to its
essence, Mr. Banks simply claims that he did not commit willful misconduct.2
               The Board, as the ultimate fact finder, made the following pertinent
findings of fact:

               3. [PennDOT’s] safety policy requires among other
               things, that employees act with reasonable care while
               driving a Commonwealth vehicle and obey the rules of
               the road under Pennsylvania law.

               4. [Mr. Banks] received a warning for a safety violation
               on September 25, 2015.

               5. Section 3331(d) of the PA “Rules of the Road”
               provides that where a special lane for making left turns
               by drivers proceeding in the opposite directions has been
               indicated by official traffic control devices: (1) a left
               turn shall not be made from any other lane.

               6. On October 26, 2015, [Mr. Banks] was driving on a
               street which had a specifically designated left turn lane,
               and made a left turn from the center lane without
               signaling.

               7. Section 3309(1) of the PA “Rules of the Road”
               provides that a vehicle shall be driven as nearly as

2
  Willful misconduct has been defined by the courts as: (1) an act of wanton or willful disregard
of the employer’s interest; (2) a deliberate violation of the employer’s rules; (3) a disregard of
standards of behavior which the employer has a right to expect of an employee; or (4) negligence
indicating an intentional disregard of the employer’s interest or of the employee’s duties and
obligations to the employer. Caterpillar, Inc. v. Unemployment Compensation Board of Review,
703 A.2d 452, 456 (Pa. 1997). Where an employer has alleged a claimant is ineligible for
unemployment compensation due to a violation of a work rule or policy, the employer bears the
burden of proof. Grieb v. Unemployment Compensation Board of Review, 600, 827 A.2d 422,
425 (Pa. 2003). Once an employer satisfies its initial burden, the burden shifts to the claimant to
prove that there was a good cause for the actions taken and that he is, therefore, not ineligible for
unemployment benefits under the Law. Guthrie v. Unemployment Compensation Board of
Review, 738 A.2d 518, 522 (Pa. Cmwlth. 1999).
                                                 2
              practicable entirely within a single lane and shall not be
              moved from the lane until the driver has first ascertained
              the movement can be made with safety.

              8.     On October 27, 2015, while traveling in the Butler
              area, [Mr. Banks] veered out of his lane without using a
              turn signal and did not return to the proper lane until
              directed to twice by the roadway program specialist who
              was a passenger in the vehicle.

              9. On October 28, 2015, while driving in the Pittsburgh
              area, the program specialist instructed [Mr. Banks] to get
              into the right lane when he was able to. [Mr. Banks]
              immediately veered to the right without checking his
              mirrors. A car in the right lane was forced off the road.

              10.     [Mr. Banks] was suspended by letter dated
              November 4, 2015. That suspension was converted to a
              discharge on November 21, 2015, for multiple safety
              violations.

              At the hearing, Mr. Banks offered a variety of reasons for not
following the “Rules of the Road” and explained why he believed his violation of
PennDOT’s driving procedures led to the safer operation of his truck. In its
opinion, the Board rejected Mr. Banss’ testimony and found the witnesses for
PennDOT completely credible.
              A review of the record indicates that the Board’s findings of fact
based upon the testimony of the witnesses are supported by substantial evidence.3

3
  Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. City of Pittsburgh, Department of Public Safety v. Unemployment
Compensation Board of Review, 927 A.2d 675, 676 n.1 (Pa Cmwlth. 2007). In unemployment
compensation cases, the Board is the ultimate finder of fact, empowered to determine the
credibility of witnesses and to resolve conflicts in the evidence. Oliver v. Unemployment
Compensation Board of Review, 5 A.3d 432, 438 (Pa. Cmwlth. 2010); Kelly v. Unemployment
Compensation Board of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). When supported by
substantial evidence, the Board’s findings are conclusive and binding on appeal. Kelly, 776 A.2d
at 336.
                                               3
Mr. Banks proffered testimony that, even if accepted as credible, would not
interfere with the findings of fact indicating that Mr. Banks was a dangerous driver
who, without good cause, repeatedly violated employee vehicle driver safety
procedures, which PennDOT quite reasonably expected Mr. Banks to adhere to.
            Therefore, the order of the Board is affirmed.




                                    ______________________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                         4
        IN THE COMMONWEALTH COURT OF PENNSYVLANIA



Winston Banks,                     :
                 Petitioner        :
                                   :
            v.                     : No. 619 C.D. 2016
                                   :
Unemployment Compensation          :
Board of Review,                   :
                 Respondent        :




                               ORDER


            AND NOW, this 20th day of December, 2016, the order of the
Unemployment Compensation Board of Review in the above matter is hereby
affirmed.



                               ______________________________________
                               JAMES GARDNER COLINS, Senior Judge
