                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Perry Craig Harrison,                             :
                   Petitioner                     :
                                                  :
                   v.                             :
                                                  :
Unemployment Compensation                         :
Board of Review,                                  :   No. 1937 C.D. 2016
                 Respondent                       :   Submitted: March 31, 2017


BEFORE:            HONORABLE P. KEVIN BROBSON, Judge
                   HONORABLE ANNE E. COVEY, Judge
                   HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                     FILED: October 19, 2017


                   Perry Harrison (Claimant) petitions for review of an October 21, 2016
Decision and Order of the Unemployment Compensation Board of Review (Board)
which denied him benefits under Section 402(e) of the Unemployment
Compensation Law (Law)1 for having committed willful misconduct. Upon review,
we affirm.
                   Claimant was employed as a full-time truck driver with Area Storage
(Employer) from November 3, 2010 through July 6, 2016. During his employment,
Claimant was involved in several accidents in which he hit other vehicles. After
Claimant’s first two accidents and following his 2015 conviction for texting while


          1
              Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e).
driving, Employer issued a written warning to Claimant that future violations would
result in termination and possible suspension of his commercial driver’s license
(CDL). Subsequently, Claimant was involved in another vehicle accident in which
he rear-ended a dump truck stopped at a red light. Claimant was discharged that day
for deliberate negligence in the operation of a commercial motor vehicle.
              Claimant filed for unemployment benefits, and was found ineligible
under Section 402(e) of the Law by the Lancaster Service Center (Service Center).
Claimant appealed. Following a hearing, the Referee affirmed the determination of
ineligibility. Claimant appealed to the Board, which adopted the findings and
conclusions of the Referee and affirmed the decision that Claimant was ineligible
under Section 402(e) of the Law. This appeal followed.2

                                         Discussion

              The essential issue for this Court is whether a finding that Claimant
committed willful misconduct is supported by substantial evidence.
              Claimant argues the Board mischaracterized the facts surrounding the
July 6, 2016 accident that immediately preceded his termination. He contends the
facts of the accident show he was not engaged in willful misconduct, and the accident
was instead the result of mere negligence. Claimant further argues his two previous
accidents were not his fault, but due to non-negligent circumstances. His actions,
therefore, do not rise to the level of willful misconduct, and Claimant asserts he is
entitled to unemployment benefits.

       2
         This Court’s review is limited to a determination of whether constitutional rights were
violated, errors of law were committed, or findings of fact were not supported by substantial
evidence. Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 438 n.2 (Pa.
Cmwlth. 2010).


                                               2
             While the Board acknowledges the accident itself was not willful, it
argues Claimant’s actions leading up to the collision meet the willfulness standard
as Claimant violated motor vehicle laws. Claimant’s conduct after having been
counseled and convicted of past misconduct, the Board asserts, rises to the level of
willful misconduct.
             Section 402(e) of the Law provides that “[a]n employe shall be
ineligible for compensation for any week… [i]n which his unemployment is due to
his discharge or temporary suspension from work for willful misconduct connected
with his work…” 43 P.S. § 802(e). The burden to show claimant committed willful
misconduct falls on the employer. Guthrie v. Unemployment Compensation Board
of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999). Willful misconduct has been
defined by the courts to include negligence indicating an intentional disregard of the
employer’s interest. Grieb v. Unemployment Compensation Board of Review, 827
A.2d 422, 425 (Pa. 2003). In unemployment compensation review cases, the Board
is the ultimate finder of fact and arbiter of credibility. See Ductmate Industries, Inc.
v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth.
2008). Upon appeal, the Board’s finding of facts are taken as conclusive, “so long
as the record, taken as a whole, contains substantial evidence to support those
findings.” Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). Substantial
evidence is “such relevant evidence which a reasonable mind may accept as adequate
to support a conclusion.” Guthrie, 738 A.2d at 521.
             Employer presented the testimony of Anna Lyons (Lyons), Employer’s
Director of Safety, who related the following.          When questioned about the
circumstances of the accident, Claimant told Lyons he was reaching for a sandwich
and only took his eyes off the road for a minute. (Certified Record (C.R.), Transcript


                                           3
of Testimony (T.T.) at 7.) A review of data taken from Employer’s software which
logs vehicle speed, direction, and GPS indicated Claimant was traveling in excess
of the speed limit. Id. Employer determined the accident was preventable and
Claimant was at fault, due to speed and not watching the roadway. Id. Lyons
testified that Claimant’s conviction for texting while driving was also a factor in
terminating his employment. Id. Entered as an exhibit, without objection, was the
written warning dated April 18, 2016, that notified Claimant future infractions would
result in termination. (C.R. Item 3, Exhibit 7.)
             Claimant’s testimony at the September 1, 2016 hearing largely
consisted of challenges to allegations of fault in the accidents prior to the July 6,
2016 incident. (T.T. at 11.) While Claimant initially testified he kept his lunch box
placed in a manner that did not require him to look at it while driving, he
subsequently stated, in regards to factors which contributed to the July 6, 2016
accident, that “it was a fact, but I don’t think the sandwich had much to do with it.”
Id. Claimant placed most of the blame for the accident on glare from the sun. Id.
Claimant also testified he believed the dump truck he rear-ended did not have
functioning brake lights. Id. at 14. He admitted he “should have realized he was
over the speed limit.” Id. at 15. Claimant traveled on the road upon which the
accident took place “just about every day,” and he was aware of the existence of the
stop light. Id.
             Claimant offered several theories in an attempt to evidence that the July
6, 2016 accident, and those preceding it, were not his fault, and therefore he had not
engaged in willful misconduct. The Board found his testimony to be self-serving
and not credible. (C.R., Item 11, Referee’s Decision and Order at 2.) The Board
concluded it was not reasonable for Claimant to be exceeding the speed limit while


                                          4
driving on a road with stop lights while Claimant’s ability to see was hampered by
the sun. Id. The Board concluded the Claimant’s inattentiveness and willful
disregard of motor vehicle regulations rose to the level of willful misconduct. Id.
We thus conclude the record contains substantial evidence to support the Board’s
findings of fact.3
              For these reasons, the order of the Board is affirmed.




                                          ___________________________
                                          JOSEPH M. COSGROVE, Judge




       3
         We make no judgment as to whether these conclusions are relevant or determinative in
any other administrative or legal proceeding.
                                             5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Perry Craig Harrison,                 :
                   Petitioner         :
                                      :
            v.                        :
                                      :
Unemployment Compensation             :
Board of Review,                      :   No. 1937 C.D. 2016
                 Respondent           :



                                  ORDER


            AND NOW, this 19th day of October, 2017, the October 21, 2016 order
of the Unemployment Compensation Board of Review is affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
