               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel P. Dailey,                          :
                           Petitioner      :
                                           :
                    v.                     :
                                           :
Unemployment Compensation                  :
Board of Review,                           :   No. 876 C.D. 2018
                    Respondent             :   Submitted: December 21, 2018

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: March 1, 2019

             Daniel P. Dailey (Claimant) pro se petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) June 1, 2018 order
affirming the Referee’s decision denying UC benefits under Section 402(e) of the UC
Law (Law).1 Claimant presents one issue for this Court’s review: whether the UCBR
erred by finding that there was sufficient evidence that Claimant’s actions constituted
willful misconduct. After review, we affirm.
             Claimant was employed full-time as a commercial truck driver by
Schneider National Carrier (Employer) from June 13, 2016 until January 12, 2018.
Claimant’s job duties required him to drive his car to the Lowe’s distribution center
in Pittston Township, pick up a tractor after conducting a pre-trip tractor check, drive
the tractor to the trailer area, conduct a pre-trip trailer check, couple the tractor and
trailer, and proceed to his scheduled destination. Certified Record (C.R.) Item 13,


      1
         Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
Notes of Testimony (N.T.) at 13. Thereafter, he would drop the trailer off, pick up an
empty trailer and either return to the distribution center or proceed to another
destination. See N.T. at 13-14. Employer discharged Claimant on January 12, 2018
for improper coupling and failing to report damage that occurred to a 5th wheel
handle on Employer’s truck on January 10, 2018.
              Claimant applied for UC benefits. On January 26, 2018, the Duquesne
UC Service Center (UC Service Center) determined that Claimant was ineligible for
UC benefits under Section 402(e) of the Law. Claimant appealed and a Referee
hearing was held on February 22, 2018. On March 15, 2018, the Referee affirmed
the UC Service Center’s determination. Claimant appealed to the UCBR. On June 1,
2018, the UCBR adopted and incorporated the Referee’s findings and conclusions
and affirmed the Referee’s decision.2 Claimant appealed to this Court.3
              Initially,

              Section 402(e) of the Law provides that an employee is
              ineligible for [UC] benefits when his unemployment is due
              to discharge from work for willful misconduct connected to
              his work. The employer bears the burden of proving willful
              misconduct in a[] [UC] case. Willful misconduct has been
              defined 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


       2
         The UCBR made the following changes to the Referee’s decision: “The [UCBR] amends
Finding of Fact 2, changing ‘mian’ to ‘main.’ The [UCBR] amends Finding of Fact 3, changing
‘blocking’ to ‘locking.’ The [UCBR] amends Finding of Fact 7, changing ‘of pay’ to ‘up to the.’
The [UCBR] adopts and incorporates the remainder of the Referee’s findings.” UCBR Decision at
1.
       3
         “Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).


                                                 2
            employer’s interest or a disregard of the employee’s duties
            and obligations to the employer.

Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 481 (Pa. Cmwlth. 2018)
(quoting Dep’t of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747
n.4 (Pa. Cmwlth. 2000) (citation omitted; emphasis added)).

            Where willful misconduct is based upon the violation of a
            work rule, the employer must establish the existence of the
            rule, its reasonableness, and that the employee was aware of
            the rule. Once employer meets this burden, the burden
            shifts to the claimant to prove that the rule was
            unreasonable or that he had good cause for violating the
            rule.

Sipps, 181 A.3d at 482 (quoting Weingard v. Unemployment Comp. Bd. of Review, 26
A.3d 571, 574-75 (Pa. Cmwlth. 2011) (citation omitted)).
            Claimant argues the UCBR erred by concluding there was sufficient
evidence that Claimant’s actions constituted willful misconduct. Specifically, he
maintains that there was no damage and, thus, nothing to report, so he did not violate
Employer’s damage reporting policy.
            At the Referee hearing, Employer’s Operations Manager Jeff Morse
(Morse) testified that, on January 11, 2018, Claimant’s co-worker notified Employer
that the 5th wheel handle of the tractor he shared with Claimant was damaged. Morse
recalled Claimant admitting to Employer that it occurred during Claimant’s coupling
process the day before.      Morse explained that after Employer’s safety team
determined that Claimant violated Employer’s coupling procedure and reporting
policies, Claimant was discharged.
            Morse presented Employer’s Driver Annual Safety and Regulatory
Policies Check, that Claimant completed and electronically signed when he was




                                          3
hired, which was accepted into evidence.4 See N.T. Ex. 7; see also N.T. at 5, 10, Ex.
7 at 1. Therein, Claimant acknowledged his understanding of Employer’s policy
regarding the coupling process:

              [T]he major safety checks required to ensure proper
              coupling every time are:
              *Before backing under the trailer or container/chassis, get
              out and check the height and alignment of it to your tractor.
              If the kingpin is run over the fifth wheel, it is difficult to get
              the pin back behind it.
              In maneuvering, the release handle can be bent easily,
              which may prevent the jaws from locking again.
              ....
              I am aware of the consequences regarding high
              hooks/unit separation/improper coupling/and improper
              locking of a trailer or container/chassis stated below.
              *High hooks/unit separations/improper coupling may
              result in termination from [Employer].
              ....

N.T. Ex. 7 at 2 (bold and underline emphasis added). Claimant also acknowledged
Employer’s policy on damage reporting:

              [A]ll crashes, injuries, incidents, alleged damage, or cargo
              damage involving [Employer-]owned or leased
              equipment (regardless of who is responsible) must be
              reported as soon as possible, and should be reported from
              the crash, injury, or incident site unless conditions or
              authorities prevent it.
              In any case of crash, incident or allegation of damage you
              must report it to [Employer] within 4 hours of that
              event. . . .



       4
          Morse described that Claimant would also have acknowledged these policies after each
refresher/sustainment training thereafter. See N.T. at 5, 10.
                                              4
             My failure to report in the time frames underlined
             above may lead to my termination from [Employer].

N.T. Ex. 7 at 4 (bold and underline emphasis added).
             Claimant described that, on January 10, 2018, when coupling the tractor
and trailer, the trailer was one half-inch too high for the 5th wheel. He explained that
he backed up approximately six inches and, when he observed the tractor was still not
touching the trailer, he also saw that the kingpin had caught the end of the 5th wheel
handle and bent it back four inches. Claimant stated he pulled the tractor forward to
clear the 5th wheel and straightened the handle back to its original position. See N.T.
at 14-15. He claimed that, other than the end of the 5th wheel handle still being
misshapen, “nothing was wrong with the 5[th] wheel, nothing[,]” and he made it to
his destination and back without incident. N.T. at 15. Claimant represented that he
intended to bring his vice grip to work the next day and return the handle to its
original shape, but his co-worker reported the condition of the handle before he had a
chance to do so. See N.T. at 15. He acknowledged that he was required to report
accidents within four hours, but concluded that there was no accident to report in this
instance. See N.T. at 15. When asked if he similarly had to report damage, he
responded: “Well, there wasn’t no [sic] damage.” N.T. at 15.
             Morse responded that what Claimant did to Employer’s equipment
constituted damage that had to be reported within four hours, in accordance with
Employer’s policy.     See N.T. at 16.         He further pronounced that “under no
circumstances are [Employer’s] drivers supposed to repair anything upon the
king[]pin, whether it be a 5[th] wheel handle, . . . the jaws or anything like that, they
need a Certified Repair Facility to do that.” N.T. at 16.
             This Court has explained:

             [T]he [UCBR] is the ultimate fact-finder in [UC] matters
             and is empowered to resolve all conflicts in evidence,
             witness credibility, and weight accorded the evidence. It is

                                           5
            irrelevant whether the record contains evidence to support
            findings other than those made by the fact-finder; the
            critical inquiry is whether there is evidence to support the
            findings actually made.        Where substantial evidence
            supports the [UCBR’s] findings, they are conclusive on
            appeal.

Sipps, 181 A.3d at 484 (quoting Ductmate Indus., Inc. v. Unemployment Comp. Bd. of
Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008)). Further,

            [s]ubstantial evidence is relevant evidence upon which a
            reasonable mind could base a conclusion. In deciding
            whether there is substantial evidence to support the
            [UCBR’s] findings, this Court must examine the testimony
            in the light most favorable to the prevailing party, . . .
            giving that party the benefit of any inferences which can
            logically and reasonably be drawn from the evidence.

Sipps, 181 A.3d at 484 (quoting Sanders v. Unemployment Comp. Bd. of Review, 739
A.2d 616, 618 (Pa. Cmwlth. 1999)).
            Here, the UCBR adopted the Referee’s conclusion:

            [Employer] has sustained [its] burden. Although the
            [R]eferee finds that [Claimant’s] accident and violation of
            [Employer’s] coupling policy was not dispositive proof of
            willful misconduct, nevertheless, the [R]eferee does not
            deem [Claimant’s] testimony as credible that he was
            unaware that he had to report the damage. The [R]eferee
            finds that [Claimant] failed to provide justifiable cause for
            his failure to notify [Employer] of the damage which
            [Claimant] had caused. Based upon the testimony and the
            documentary evidence in the record, the [R]eferee finds
            [Claimant’s] actions rise to the level of willful misconduct.
Referee Dec. at 3.
            Based upon this Court’s review, there is substantial evidence to support
the UCBR’s findings and conclusion that Employer had a reasonable policy
mandating that drivers report damage to Employer’s equipment within four hours of
when it occurred and that Claimant was aware of the policy. Claimant damaged
Employer’s equipment on January 10, 2018, but did not report it. Claimant did not

                                         6
meet his burden of proving good cause for violating the policy. Rather, he asserts
that no harm was done, since he was able to return the 5th wheel handle to its original
position and complete his delivery, and he was going to reshape the tip of the 5th
wheel handle the next day. However, Employer’s damage reporting policy mandated
that Claimant report “all . . . damage” to Employer’s equipment, and was not
contingent upon whether Claimant was able to fix it. N.T. Ex. 7 at 4. Viewing the
evidence in a light most favorable to Employer, as we must, this Court holds that the
UCBR properly concluded that Claimant committed willful misconduct and, thus, he
is not eligible for UC benefits under Section 402(e) of the Law.
            For all of the above reasons, the UCBR’s order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel P. Dailey,                       :
                         Petitioner     :
                                        :
                    v.                  :
                                        :
Unemployment Compensation               :
Board of Review,                        :   No. 876 C.D. 2018
                    Respondent          :


                                      ORDER

            AND NOW, this 1st day of March, 2019, the Unemployment
Compensation Board of Review’s June 1, 2018 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
