           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

General Pipe Cleaning and Sewer               :
Service, Inc.,                                :
                        Petitioner            :
                                              :
                v.                            :   No. 2526 C.D. 2015
                                              :
Unemployment Compensation                     :   Submitted: May 27, 2016
Board of Review,                              :
                    Respondent                :

BEFORE:         HONORABLE ROBERT SIMPSON, Judge
                HONORABLE ANNE E. COVEY, Judge
                HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                              FILED: July 7, 2016

                General Pipe Cleaning & Sewer Service, Inc. (Employer) petitions for
review from an order of the Unemployment Compensation Board of Review
(Board) that granted Joseph A. Dupon (Claimant) unemployment compensation
(UC) benefits, concluding Employer did not prove Claimant committed willful
misconduct under Section 402(e) of the UC Law (Law).1 Employer contends the
Board erred in finding Claimant’s conduct constituted mere negligence rather than
willful misconduct.       Employer also argues the Board erred in failing to find
Claimant’s discharge was based on a violation of a reasonable work rule or policy.
Upon review, we affirm.




       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
            Claimant worked for Employer as a full-time laborer/operator from
October 16, 2014, until his last day of work on June 26, 2015. One of the vehicles
Claimant operated was a truck that contained a hydraulically operated vacuum
storage tank and pump system mounted on the vehicle. On June 26, after leaving a
job site, Claimant failed to lower the tank on the truck and struck the top of a
concrete tunnel with the tank, resulting in a total loss with damage valued at over
$100,000. Employer ultimately terminated Claimant after the accident.


            Thereafter, Claimant applied for UC benefits, which a local service
center denied under Section 402(e) of the UC Law. Claimant appealed, and a
referee’s hearing followed.


            At the referee’s hearing, neither Employer nor Claimant was
represented by counsel.       Employer’s business manager, Martin J. Schieken
(Business Manager), testified for Employer. Business Manager testified Claimant
was no longer employed because of his failure to perform required safety checks,
which led to the accident. Business Manager also testified Claimant navigated the
same truck through the same tunnel multiple times the week prior to the accident.
His testimony included that Claimant was immediately suspended after the
accident and was later formally discharged after completion of an investigation.


            Employer’s vice president, Arthur McErlean (Vice President), also
testified for Employer. Vice President testified Claimant immediately contacted
him after the accident, and Claimant told him he hit a bridge because he did not
lower the tank all the way while driving through the underpass. Vice President



                                         2
also testified he conducted the investigation of the accident and concluded
Claimant’s conduct was negligent because he did not ensure the truck’s tank was
down prior to driving the truck.


             Claimant testified on his own behalf.        He explained that he was
terminated, “[d]ue to the accident in regards to the truck in the tunnel,” and also for
failing to follow company procedures. Referee’s Hr’g, Notes of Testimony (N.T.),
9/10/15, at 16, 19. Claimant further testified he thought he put the tank down, he
did not leave it up on purpose, and it was his responsibility as the truck operator to
ensure the tank was in the correct position.


             After the hearing, the referee found Claimant ineligible for benefits
under Section 402(e).     The referee determined the existence and violation of
Employer’s reasonable policy of requiring employees to secure vehicles they are
driving and make them safe before driving. The referee also determined Claimant
did not show good cause for violating this policy. Thus, the referee determined
Claimant’s actions constituted willful misconduct.


             On appeal, the Board issued its own decision in which it reversed the
referee’s decision.   The Board made the following six findings of fact (with
emphasis added):

          1. [C]laimant was last employed by [Employer] as a
             laborer/operator paid at the rate of $15 per hour. This
             was full time employment [C]laimant held from October
             16, 2014 through June 26, 2015.




                                          3
         2. On June 26, 2015, [C]laimant became involved in a
            serious accident with [E]mployer’s truck.

         3. [C]laimant had emptied and cleaned the tank located on
            the back of the truck he was driving[,] and he
            accidentally left it partially raised when he drove the
            truck on the roadway.

         4. Because he forgot to lower the tank to its proper
            position[,] when [C]laimant was driving through a tunnel,
            the tank struck the top of [the] tunnel and caused
            $100,000.00 worth of damage to [E]mployer’s vehicle.

         5. [C]laimant was discharged solely for his involvement in
            the accident.

         6. [C]laimant did not deliberately cause the damage to the
            [E]mployer’s truck.

Bd. Op., 11/19/15, Findings of Fact (F.F.) Nos. 1-6. In granting benefits, the
Board reasoned (with emphasis added):

            Based upon the above Findings, which are supported by
            [C]laimant’s credible testimony, the Board concludes that
            [C]laimant’s actions do not rise to the level of willful
            misconduct. [C]laimant’s actions in causing the accident
            and the damage to the employer’s vehicle, were clearly
            negligent.     Negligence, however, is not willful.
            Therefore, as repeatedly held by the courts benefits
            cannot be denied under Section 402(e) of the Law. See
            Myers [v. Unemployment Comp. Bd. of Review, 625 A.2d
            622 (Pa. 1997)]; Navickas [v. Unemployment Comp. Bd.
            of Review, 787 A.2d 284 (Pa. 2001)]; Grieb [v.
            Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa.
            2002) [sic]].




                                        4
Bd. Op. at p. 2. Employer petitions for review to this Court.2


                                          Issues
              In its brief, Employer states five issues that can be consolidated into
two assignments of error. Employer first contends the Board erred in finding
Claimant’s conduct was the result of mere negligence rather than willful
misconduct. Employer also asserts the Board erred in failing to find Claimant’s
discharge was based on a violation of a reasonable work rule or policy.


                                       Discussion
              The Board is the ultimate fact-finder in UC cases.                Oliver v.
Unemployment Comp. Bd. of Review, 5 A.3d 432 (Pa. Cmwlth. 2010) (en banc).
Thus, matters of credibility and the weight to be given conflicting testimony fall
within the Board’s exclusive province. Id. We must view the record in the light
most favorable to the prevailing party before the Board, and give that party the
benefit of all reasonable inferences that can be drawn from the evidence. Sanders
v. Unemployment Comp. Bd. of Review, 739 A.2d 616 (Pa. Cmwlth. 1999).


              Section 402(e) of the Law states that an employee shall be ineligible
for compensation for any week in which his unemployment is due to willful
misconduct connected to his work. 43 P.S. §802(e). Willful misconduct within
Section 402(e) is defined by the courts as: (1) a wanton and willful disregard of an

       2
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).



                                            5
employer’s interests; (2) deliberate violation of rules; (3) disregard of the standards
of behavior which an employer can rightfully expect from an employee; or, (4)
negligence showing an intentional disregard of the employer’s interests or the
employee’s duties and obligations. Grieb; Myers. The employer bears the initial
burden of establishing a claimant engaged in willful misconduct.            Navickas.
Whether a claimant’s actions constitute willful misconduct is a question of law
fully reviewable on appeal. Id.


                                          I.
             Employer first asserts the Board erred in finding Claimant’s conduct
constituted mere negligence rather than willful misconduct. Employer disputes the
Board’s fifth finding of fact, in which the Board found that Claimant was
discharged solely for his involvement in the accident.         Employer contends it
terminated Claimant for a series of violations that manifested a wanton and willful
disregard of Employer’s interests.


             More particularly, these violations included Claimant: (1) leaving the
work site without lowering the tank; (2) failing to perform visual and physical
inspections of the truck; (3) driving the vehicle with an unsecured tank; (4) striking
an underpass with the vehicle and destroying a valuable piece of equipment; (5)
failing to maintain a commercial driver’s license (CDL) log book; (6) failing to
refill the truck’s windshield washer fluid reservoir; and, (7) failing to maintain
driving records and duty status entries for the seven days preceding the accident.




                                          6
             Upon review, substantial evidence supports the Board’s finding that
Employer discharged Claimant solely for his involvement in the accident.
Regarding Employer’s termination letter, the referee inquired whether Claimant’s
termination regarded the multitude of policy and regulatory violations, or if it
regarded the accident. Business Manager replied, “It has to do with the accident.
The accident in the tunnel precipitated an inspection by the State Police.” N.T. at
7.   Thus, substantial evidence supports the Board’s finding that Employer
terminated Claimant solely for the June 26 accident.


             Further, an inadvertent or unintentional mistake does not constitute
willful misconduct under the Law. Navickas. Here, the Board found, “[C]laimant
did not deliberately cause the damage to [E]mployer’s truck.” F.F. No. 6. This
finding is supported by Claimant’s credited testimony that he “thought [he] put
[the tank] down,” and he “wouldn’t have done this on -- [he] did not do this on
purpose. It was an accident.” N.T. at 16, 17. Further, Claimant’s testimony is
bolstered by the testimony of Vice President, who stated, “[t]hat was negligent
because he didn’t check the truck out .…” N.T. at 12. Thus, the Board’s sixth
finding of fact, that Claimant did not deliberately cause damage to Employer’s
truck, is also supported by substantial evidence.


             Our Supreme Court holds that “an employer cannot demonstrate
willful misconduct by ‘merely showing that an employee committed a negligent
act, but instead must present evidence indicating that the conduct was of an
intentional and deliberate nature.’” Myers, 625 A.2d at 625 (citation omitted). In
Myers, this Court upheld the Board’s denial of UC benefits to a claimant-truck



                                          7
driver, finding his involvement in three accidents within a six-month period
constituted willful misconduct.         The Supreme Court reversed, concluding the
evidence “reveal[ed] no … intentional and deliberate conduct on [claimant’s]
part,” without which only a finding of negligence is supported. Id.


              Thus, intentional action or its equivalent is a prerequisite for willful
misconduct. The credited evidence here does not suggest Claimant intentionally
violated Employer’s rule, nor that he intentionally disregarded Employer’s
interests. Grieb; Myers. As in Myers, no evidence was presented to suggest
Claimant acted intentionally to cause the truck accident. F.F. No. 6. Claimant
thought he complied with the rules for lowering and inspecting the tank.
Unfortunately, he was careless in doing so. Carelessness does not amount to
willful misconduct under the Law. Rung v. Unemployment Comp. Bd. of Review,
689 A.2d 999 (Pa. Cmwlth. 1997).


                                              II.
              Employer also contends the Board erred in failing to find Claimant’s
discharge was based on a violation of a reasonable work rule or policy. Employer
argues Claimant violated a company equipment provision in its Employee
Handbook where he was obligated to, among other things, ensure all equipment on
the truck was secured. Reproduced Record (R.R.) at 39. Employer further alleges
Claimant failed to comply with CDL regulations 231-9 and 395-A.3 N.T. at 5.



       3
          Business Manager testified these regulations concerned Claimant’s failure to “maintain
his log properly.” Referee’s Hr’g, Notes of Testimony, 9/10/15, at 5.



                                               8
            Employer maintains these policy violations must trigger an analysis
under Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461
(Pa. Cmwlth. 1994), which mandates a finding of willful misconduct when a
claimant knowingly violates an employer’s reasonable rule.


            Where a claimant is terminated for violating an employer’s policy, the
employer bears the burden of proving: (1) the existence of the policy; (2) that the
policy was reasonable; and (3) that the claimant was aware of and violated the
policy deliberately. Rothstein v. Unemployment Comp. Bd. of Review, 114 A.3d
6 (Pa. Cmwlth. 2015). If the employer satisfies its burden, the burden shifts to the
claimant to establish he had good cause for violating the policy. Id. A claimant
will be found to have had good cause to violate the policy if his conduct was
justified or reasonable under the circumstances. Id.


            Here, the Board’s sixth finding of fact is critical: “Claimant did not
deliberately cause the damage to [E]mployer’s truck.”        F.F. No. 6 (emphasis
added). Claimant’s credited testimony provides substantial evidence to support
this finding. N.T. at 16, 17. Thus, Claimant’s purported rule violation of leaving
the tank unsecured and driving off was an inadvertent or unintentional mistake,
which does not constitute willful misconduct. Grieb; Navickas; Myers.


            In addition, Heitczman, relied on by Employer, is distinguishable.
There, the claimant worked as a truck driver. The employer had a policy that
drivers were to conduct a “walk around” of their trucks prior to reversing. Id. at
464. The claimant in Heitczman was aware of this policy, yet failed to conduct the



                                         9
required walk around. While reversing the truck, the claimant’s truck struck a light
standard, causing significant damage, and he was ultimately terminated. This
Court determined that substantial evidence supported a finding of a deliberate rule
violation. As a result, this Court held the claimant’s deliberate failure to comply
with the employer’s policy constituted willful misconduct, as his action was “akin
to disobedience of a direct instruction.” Id. at 464.


              Unlike in the case presently before us, the Board in Heitczman made
no finding as to the claimant’s state of mind regarding the rule violation.4 Because
the Board here found Claimant’s conduct was not deliberate, F.F. No. 6, and this
finding is supported by Claimant’s credited testimony, this case is distinguishable
from Heitczman. As the Board properly recognized here, our Supreme Court holds
that an inadvertent rule violation does rise to the level of willful misconduct.
Grieb; Navickas; Myers.


              Similarly, this Court repeatedly holds that for a rule violation to
constitute willful misconduct, the violation must be done knowingly and
deliberately. Eshbach v. Unemployment Comp. Bd. of Review, 855 A.2d 943 (Pa.
Cmwlth. 2004); BK Foods, Inc. v. Unemployment Comp. Bd. of Review, 547 A.2d
873 (Pa. Cmwlth. 1988); Kriebel v. Unemployment Comp. Bd. of Review, 426


       4
          “An appellate court may consider only facts which have been duly certified in the
record on appeal. A[n] [item] does not become part of the certified record simply by copying it
and placing it in the reproduced record.” Murphy v. Murphy, 599 A.2d 647, 652 (Pa. Super.
1991) (emphasis in original).
       Here, although Employer included its Employee Handbook in its Reproduced Record, the
Employee Handbook is not contained in the certified record on appeal. Thus, we may not
consider it.



                                              10
A.2d 1240 (Pa. Cmwlth. 1981); Frazier v. Unemployment Comp. Bd. of Review,
411 A.2d 580 (Pa. Cmwlth. 1980); Holomshek v. Unemployment Comp. Bd. of
Review, 395 A.2d 708 (Pa. Cmwlth. 1979). Claimant’s inadvertent conduct here
does not amount to willful misconduct.


                  For these reasons, we affirm the Board.




                                     ROBERT SIMPSON, Judge




                                         11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

General Pipe Cleaning and Sewer        :
Service, Inc.,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 2526 C.D. 2015
                                       :
Unemployment Compensation              :
Board of Review,                       :
                    Respondent         :


                                     ORDER

            AND NOW, this 7th day of July, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      ROBERT SIMPSON, Judge
