           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyler Transport and Towing, LLC,      :
                        Petitioner    :
                                      :
                                      :
            v.                        :   No. 1994 C.D. 2015
                                      :   Submitted: March 24, 2016
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                          FILED: August 26, 2016



            Petitioner Tyler Transport and Towing, LLC (Employer) petitions for
review of an order of the Unemployment Compensation Board of Review (Board),
affirming a Referee’s decision and granting Sidney Smith (Claimant)
unemployment compensation benefits. For the reasons set forth below, we
reverse.
            Claimant filed for unemployment compensation benefits following his
discharge from Employer. The Altoona UC Service Center (Service Center) issued
a notice of determination, finding Claimant ineligible for benefits pursuant
Section 402(e) of the Unemployment Compensation Law (Law),1 relating to
willful misconduct. (Reproduced Record (R.R.) at 13a.) Claimant appealed the
Service Center’s determination, and an unemployment compensation referee
(Referee) conducted a hearing on May 27, 2015. (R.R. at 22a.) Following the
hearing, the Referee issued a decision, in which she reversed the Service Center’s
determination, finding Claimant eligible for unemployment compensation benefits.
(R.R. at 68a-69a.) Employer appealed the Referee’s order to the Board, which
affirmed the Referee’s decision. (R.R. at 78a-80a.) In doing so, the Board made
its own findings of fact and conclusions of law. (Id.) The Board made the
following findings:
                 1.    The claimant was last employed as a full-time
                       driver by Tyler Transport and Towing LLC from
                       January 14, 2010, at a final rate of $16.00 per hour
                       and his last day of work was April 8, 2015.
                 2.    The employer moves freight for other companies.
                       Part of the claimant’s job duties as a driver
                       included properly loading and securing freight on
                       his truck.
                 3.    The employer’s driver operations manual provides
                       that drivers are to deliver orders safety (sic) and
                       secure all freight properly to eliminate damage
                       during transit. The claimant was aware of the
                       employer’s policy for securing freight.
                 4.    On February 18, 2015, the claimant received a
                       warning for failing to properly secure freight on
                       February 16, 2015 which caused damage to the
                       freight and the employer’s truck. The warning
                       stated that any further incidents of failure to secure
                       freight properly would result in his discharge.

       1
            Act of December 5, 1936, Second Ex. Sess., P.L (1937) 2897, as amended, 43 P.S.
§ 802(e).



                                              2
            5.       The claimant picked up freight at various client
                     loading docks and the employer expected the
                     claimant to contact a manager from Tyler
                     Transport if he was having issues loading freight at
                     a client’s dock.
            6.       On April 8, 2015, the claimant picked up freight at
                     the Pilot Transport dock and was then assigned to
                     pick up 10 electric scooters at the AIT dock.
            7.       Before leaving the Pilot Transport dock, the
                     claimant contacted the operations manager at Tyler
                     Transport and advised that he did not think he
                     would be able to fit the scooters onto the truck
                     with the other freight that was already loaded.
            8.       The operations manager told the claimant “see
                     what you can do.”
            9.       The scooters were in individual boxes which stated
                     on the side that the boxes were to be kept upright
                     and not stacked.
            10.      The claimant had delivered scooters before and
                     was aware that they were to be kept upright and
                     not stacked.
            11.      The claimant took the scooters out of the boxes
                     and stacked the scooters into the back of the truck
                     on their sides to make them fit onto the claimant’s
                     truck.
            12.      When the claimant arrived at the client’s location,
                     the client refused the load of scooters because they
                     were stacked on their sides.          The scooters
                     contained oil and stacking them on their sides may
                     have damaged them.
            13.      On April 9, 2015, the employer discharged the
                     claimant for failing to properly load freight on
                     April 8, 2015.
(R.R. at 78a-79a.)
            Based on the above-listed findings, the Board concluded that Claimant
did not commit willful misconduct in improperly stacking the scooters and was


                                           3
eligible for unemployment compensation benefits.                 In so holding, the Board
reasoned, in part:
               The claimant testified that the operations manager of
               Tyler Transport told him to stack the scooters to make
               them fit on the truck. The Board does not find the
               claimant’s testimony in this regard to be credible.
               However, the Board credits the claimant’s testimony that
               the operations manager told him “see what you can do.”
               The employer argues that the claimant previously
               delivered scooters and the claimant was aware that the
               scooters were to be kept upright. However, based on the
               operation manager’s directive of “see what you can do”
               to make the scooters fit, the Board finds that the claimant
               used poor judgment in stacking the scooters. Use of poor
               judgment is not willful misconduct. Benefits are granted
               to the claimant . . . .
(R.R. at 80a (emphasis added).)
               On appeal,2 Employer essentially argues that the Board erred as a
matter of law in concluding that Claimant’s conduct constituted poor judgment and
did not rise to the level of willful misconduct.3
               Section 402(e) of the Law provides, in part, that an employee shall be
ineligible for compensation for any week in which “his unemployment is due to his
discharge or temporary suspension from work for willful misconduct connected


       2
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.
       3
          Employer also appears to argue that substantial evidence does not exist to support the
Board’s “finding” that Claimant “used poor judgment in stacking the scooters improperly.”
(Petitioner’s Br. at 6; R.R. at 80a.) Although couched as a finding in the Board’s reasoning, it
appears that the Board actually concluded, as a matter of law, that Claimant’s actions constituted
poor judgment and not willful misconduct.



                                                4
with his work.”4 The employer bears the burden of proving that the claimant’s
unemployment is due to the claimant’s willful misconduct.                          Walsh v.
Unemployment Comp. Bd. of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). The
term “willful misconduct” is not defined by statute. The courts, however, have
defined “willful misconduct” as:
              (a) wanton or willful disregard of employer’s interests,
              (b) deliberate violation of the employer’s rules,
              (c) disregard of standards of behavior which an employer
              can rightfully expect of an employee, or (d) negligence
              indicating an intentional disregard of the employer’s
              interest or an employee’s duties and obligations.

Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422, 425 (Pa. 2003).
Willful misconduct includes an employee’s deliberate violation of an employer’s
rule and an employee’s disregard of the standard of behavior expected by an
employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Comp. Bd.
of Review, 309 A.2d 165, 168 (Pa. Cmwlth. 1973). An employer, seeking to prove
willful misconduct by showing that the claimant violated the employer’s rules or
policies, must prove the existence of the rule or policy and that the claimant
violated it. Walsh, 943 A.2d at 369. If, however, the claimant can show good
cause for the violation, then there should be no finding of willful misconduct. Id.
An employee who ignores clear and simple instructions from his employer without
establishing good cause engages in willful misconduct. Hartman v. Unemployment
Comp. Bd. of Review, 455 A.2d 756, 757 (Pa. Cmwlth 1983). A single incident of



       4
         Whether or not an employee’s actions amount to willful misconduct is a question of law
subject to review by this Court. Nolan v. Unemployment Comp. Bd. of Review, 425 A.2d 1203,
1205 (Pa. Cmwlth. 1981).



                                              5
misconduct may support a denial of benefits. Jones v. Unemployment Comp. Bd.
of Review, 373 A.2d 791, 792 (Pa. Cmwlth. 1977).
            First, we must determine whether Employer sustained its burden and
established a prima facie case of willful misconduct. In doing so, Employer must
initially establish the existence of a policy or rule. Here, Employer testified that
there is an operations manual provided to all employees when they start their
employment.     (R.R. at 29a.)    This operations manual outlines policies and
procedures for many aspects of the job, including a directive that indicates freight
must be loaded and secured safely and properly. (Id.) Employer further testified
that the operations manual states that drivers must “[s]ecure all weight properly to
eliminate damage during transit.” (R.R. at 30a.) In a previous incident, Claimant
received a written warning from Employer after Claimant failed to properly secure
freight, ultimately causing approximately $20,000 worth of damage to one of the
shipping trucks. (R.R. at 33a.) Employer further testified that after the previous
incident, Claimant was re-informed of the policies and procedures involved in
securing freight and was informed that another violation of this nature would result
in his termination. (R.R. at 34a.) Based upon this testimony, Employer sustained
its burden to establish that it maintains a policy regarding the proper securing of
freight.
            The second requirement of Employer’s prima facie case is to show
that Claimant was or should have been aware of the policy. Based upon the
testimony discussed above, the Board found that Claimant had previously received
a warning regarding properly securing freight. Employer, therefore, met its burden
to establish that Claimant was or should have been aware of Employer’s policy.




                                         6
              Additionally, Employer must establish the third requirement of its
prima facie case by showing that Claimant violated Employer’s policy. Employer
testified that it first discovered that the scooters had been loaded improperly after
the customer had refused shipment. (R.R. at 37a.) Thereafter, Claimant also
testified to stacking the scooters improperly. (R.R. at 46a-47a.) As the Board
found this testimony credible, Employer satisfied its burden of proving Claimant
violated the policy.
              Once an employer has satisfied its burden, however, the burden then
shifts to the claimant to show good cause as justification for the conduct
considered willful. McKeesport Hosp. v. Unemployment Comp. Bd. of Review,
625 A.2d 112, 114 (Pa. Cmwlth. 1993) (citing Mulqueen v. Unemployment Comp.
Bd. of Review, 543 A.2d 1286 (Pa. Cmwlth. 1988)). The employee establishes
good cause where his actions are justified or reasonable under the circumstances.
Chapman v. Unemployment Comp. Bd. of Review, 20 A.3d 603, 607
(Pa. Cmwlth. 2011) (citing Guthrie v. Unemployment Comp. Bd. of Review,
738 A.2d 518 (Pa. Cmwlth. 1999)).
              Here, Claimant failed to establish good cause for improperly stacking
the scooters. At the hearing in front of the Referee, Claimant testified to being
aware that the scooters would not fit on his truck before he attempted to load them.
(R.R. at 46a-48a.) Further, Claimant testified to knowing that the scooters needed
to be loaded properly as to avoid damaging the freight.5 (Id.) When Claimant
       5
          In regards to why the scooters had to be loaded a certain way to avoid damage,
Employer testified that these scooters contain oil, and when the scooters are improperly loaded,
the oil inside may cause damage to the scooter. Claimant stacked some of the scooters on their
side, which put the scooters at risk of damage, prompting the customer to refuse delivery. (C.R.,
Item No. 10.)



                                               7
followed company protocol by bringing this potential issue to the attention of a
manager (Pat Corbett), Mr. Corbett responded by telling Claimant “see what you
can do.” (R.R. at 46a.) Mr. Corbett’s statement occurred at the Pilot Transport
dock, prior to Claimant driving to the AIT dock to pick up and attempt to load the
scooters.    (Id.)   Upon arriving at the AIT dock, Claimant’s suspicions were
confirmed, as the scooters would not fit inside his truck. It was at this point that
Claimant decided to load the scooters improperly, in violation of the company
policy requiring Claimant to secure freight safely and properly.
              At no point after confirming his beliefs that the scooters would not fit
did Claimant attempt to contact Mr. Corbett for further guidance on how to resolve
the situation. Mr. Corbett’s statement of “see what you can do” was not the
equivalent of giving Claimant permission to violate company policy and stack the
scooters improperly, potentially damaging them. Rather, Mr. Corbett’s statement
merely instructed Claimant to see if the scooters fit. Rather than attempting to load
the freight, confirming that it would not fit, and contacting Mr. Corbett or another
Tyler manager for further instruction, Claimant chose to stack the freight
improperly, in an effort to complete his assigned task.
              Nevertheless, the Board argues that this Court has held in prior
instances that good-faith violations of an employer’s rule do not rise to the level of
willful misconduct.6 These cases, however, are distinguished on their facts. In


       6
          See Frazier v. Unemployment Comp. Bd. of Review, 411 A.2d 580 (Pa. Cmwlth. 1980);
Assise v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2507 C.D. 2011, filed
January 4, 2013). Pursuant to Commonwealth Court Internal Operating Procedure § 414(a),
relating to the citing of judicial opinions, an unreported opinion of the Court may only be cited
“for its persuasive value, but not as binding precedent.”



                                               8
Frazier v. Unemployment Compensation Board of Review, 411 A.2d 580 (Pa.
Cmwlth. 1980), the claimant was employed as a book store manager in a mall, and
inadvertently left a bag of the store’s money out in the open. Frazier, 411 A.2d
at 581. Thereafter, the bag went missing. Id. Claimant immediately called the
police and filed a report concerning the bag and its contents being stolen. Id.
Thereafter, the bag was found, and a majority of the money was missing,
presumably stolen. Id. Employer then discharged Claimant for a violation of a
company policy. Id. The Board found that the claimant’s actions in losing the bag
were “an honest mistake, made by an employee who was aware of his
responsibilities and unintentionally erred in his efforts to perform them.” Id. at
582. The Court, in affirming the Board’s order, was persuaded by the lack of
evidence that would evince wrongful intent, culpability, or substantial disregard for
the employer’s interests on behalf of the claimant. Id. The Court, however,
observed that had the claimant deliberately decided to break the employer’s rule,
even for good reason, the result may have been different. Id.
             Comparing Frazier to the matter now before the Court, we note that in
Frazier, the claimant did not disregard the employer’s interest, as the claimant
inadvertently misplaced the money and did not intentionally leave the money out
in the open.     Here, however, Claimant intentionally stacked the scooters
improperly, in violation of Employer’s clear work rule to properly secure freight to
eliminate damage during transit. Claimant, after arriving at the AIT dock, made no
attempt to recontact Employer to update that the scooters, in fact, could not be
loaded properly and to seek further instructions or guidance.         Claimant has
provided no reasonable explanation justifying his failure to recontact Employer




                                         9
before deciding on his own to violate Employer’s work rule. Thus, Claimant failed
to establish good cause for his actions.
              Claimant, although conceivably well-intended in his actions to
complete his duties, engaged in conduct that amounted to a violation of
Employer’s work rule, and did not have good cause for the violation. The Board,
therefore, erred in concluding that Claimant’s actions did not rise to that of willful
misconduct.
              Accordingly, the order of the Board is reversed.




                                 P. KEVIN BROBSON, Judge




                                           10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tyler Transport and Towing, LLC,       :
                        Petitioner     :
                                       :
            v.                         :   No. 1994 C.D. 2015
                                       :
Unemployment Compensation Board        :
of Review,                             :
                    Respondent         :


                                     ORDER


            AND NOW, this 26th day of August, 2016, the order of the
Unemployment Compensation Board of Review is hereby REVERSED.




                              P. KEVIN BROBSON, Judge
