Opinion
No. 831 C.D. 2013
03-07-2014
Glenn A. Hendricks, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Glenn A. Hendricks (Claimant) petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) April 25, 2013 order affirming the Referee's decision denying Claimant unemployment compensation (UC) benefits. Claimant presents two issues for this Court's review: (1) whether the UCBR erred in finding that Claimant engaged in willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law) when he failed to maintain his driver's license as required by his position, due to a one-year suspension arising from a guilty plea to a charge of driving under the influence; and, (2) whether the UCBR erred in relying upon Section 3 of the Law as an interpretive aid. We affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Section 3 of the Law states:
Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employes during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.43 P.S. § 752 (emphasis added).
Claimant was employed by the Pennsylvania Department of Transportation (Employer) from November 19, 1990 until December 10, 2012. Claimant worked as a highway foreman II until June 6, 2012. Claimant's position required that he maintain a valid driver's license. On June 6, 2012, Claimant pled guilty to a driving under the influence charge resulting in the loss of his driver's license, and disqualification from obtaining a license for one year. In accordance with Employer's policy, Claimant was demoted to a highway maintenance worker and advised that he would continue in that position until he could produce a valid driver's license. Claimant was also advised that if he failed to produce a valid driver's license within 180 days, his employment would be terminated. Claimant was unable to fulfill this job requirement, and on December 10, 2012, employer suspended Claimant. On December 28, 2012, Employer terminated Claimant's employment.
Claimant filed an application for UC benefits. On January 16, 2013, the Erie UC Service Center issued a determination finding Claimant ineligible for benefits under Section 402(e) of the Law. Claimant appealed and, on February 25, 2013, a Referee hearing was held. On February 27, 2013, the Referee issued her decision finding Claimant ineligible for benefits due to willful misconduct. Claimant appealed to the UCBR. On April 25, 2013, the UCBR affirmed the Referee's decision, finding that Employer had met its burden of establishing that the highway foreman II position required a valid driver's license, and that Claimant did not show good cause for failing to have a license. The UCBR concluded that "[u]sing Section 3 [of the Law] as an interpretive aid, the [C]laimant's unemployment cannot be stated to be through no fault of his own." Reproduced Record at 3. Claimant appealed to this Court.
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant first argues that he did not engage in willful misconduct by failing to obtain a driver's license because the position he held at the time his employment was terminated did not require a driver's license, and even if it did, Claimant had good cause for not complying, since he was legally prohibited from obtaining a driver's license. We disagree.
Initially, we note that Claimant's Petition for Review does not include the objection that he did not engage in willful misconduct because the position to which Employer reassigned him did not require a driver's license. This Court has stated:
Pa.R.A.P. 1513 requires a petition for review to contain a general statement of the objections. To properly preserve an issue, a petition for review filed pursuant to Pa.R.A.P. 1513(d), requires a general statement of objections and provides the statement of objections will be deemed to
include every subsidiary question fairly comprised therein. Issues not raised in the petition for review will not be addressed.United Transp. Union v. Pa. Pub. Util. Comm'n, 68 A.3d 1026, 1042 (Pa. Cmwlth. 2013) (citation and quotation marks omitted). Because the objection was not included in Claimant's Petition for Review, and is not "fairly comprised therein[,]" the issue is waived. Id. Accordingly, we will not address it.
Claimant filed an amended Petition for Review containing this issue. On June 28, 2013, the UCBR filed an Application for Relief in the Form of a Motion to Strike Claimant's Amended Petition for Review on the grounds that the Amended Petition for Review was untimely filed and Claimant's attempt to add new issues was impermissible. On September 23, 2013, this Court granted the UCBR's application to strike the amended petition.
The concurring opinion concludes that the issue was not waived because it was "fairly comprised therein." The entirety of Claimant's Petition for Review challenges the denial of benefits solely on the impossibility of conforming with Employer's work rule. Thus, the assertion in his Petition for Review is a good-cause defense to misconduct. Claimant did attempt to amend his Petition to include the completely new issue that there was no willful misconduct (because no work rule existed, and thus he could not have violated it).
Notably, Claimant felt the issue was significantly different enough to request this Court to permit him to amend his Petition for Review to include the issue. This Court denied that request. The question to be asked is whether Claimant's new point in dispute that there was no applicable work rule is "fairly comprised" within Claimant's original assertion that compliance with the work rule was impossible. The two issues are distinctly different, and incompatible, especially since Claimant's Petition for Review necessarily assumes that there was indeed a work rule prohibiting his conduct. Claimant himself obviously thought they were different issues so he filed an amended Petition for Review. The issue that there was no willful misconduct because there was no work rule, is not "fairly comprised" within the issue that there was good cause for violating the work rule.
Claimant also argues that he had good cause for failing to obtain a driver's license. We disagree.
Section 402(e) of the Law[, 43 P.S. § 802(e),] provides that an employee is ineligible for unemployment compensation 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 an unemployment compensation 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 employer's interest or a disregard of the employee's duties and obligations to the employer.Dep't of Transp. v. Unemployment Comp. Bd. of Review, 755 A.2d 744, 747-48 n.4 (Pa. Cmwlth. 2000) (citation omitted). "When an employee is discharged for violating a work rule, the employer must prove the existence of the rule and the fact of its violation. The burden then shifts to the employee to prove that he or she had good cause for violating the rule." Lewis v. Unemployment Comp. Bd. of Review, 42 A.3d 375, 377 (Pa. Cmwlth. 2012).
The law is well-established that "where one of the prerequisites for employment is possession of a driver's license and an employee loses his driving privileges through his own fault, he is ineligible for unemployment compensation benefits." Williams v. Unemployment Comp. Bd. of Review, 651 A.2d 708, 710 (Pa. Cmwlth. 1994) (holding that a claimant's failure to maintain a valid driver's license, which was required for employment, constituted willful misconduct under Section 402(e) of the Law). In Manross v. Unemployment Compensation Board of Review, 572 A.2d 49 (Pa. Cmwlth. 1990), this Court held that the UCBR properly applied Section 402(e) of the Law in finding the claimant ineligible for benefits where the claimant's position required a valid driver's license and the claimant's driver's license had been suspended for off-duty conduct - driving under the influence of intoxicants.
Similarly, in the instant case, Claimant pled guilty to a charge of driving under the influence and lost his driver's license as a consequence of his guilty plea. The UCBR found that Employer established its policy which required Claimant to have a valid driver's license, and, in accordance with its policy, Employer demoted Claimant for 180 days to allow Claimant the opportunity to restore his driver's license, that Claimant was or should have been aware of the policy, and that Claimant violated that policy without good cause. Contrary to Claimant's assertion, Claimant did not establish good cause for his willful misconduct by demonstrating that he was legally unable to obtain a license for a one-year period. Although such is true, the inability to obtain the license for that time period resulted directly from Claimant's own illegal conduct and subsequent guilty plea. Claimant failed to provide good cause for that conduct. Accordingly, the UCBR did not err.
Claimant next contends that the UCBR erred when it "us[ed] Section 3 [of the Law] as an interpretive aid." We disagree. As stated above, there was substantial evidence to support the Board's finding of willful misconduct, separate and apart from its consideration of Section 3 of the Law. We note that the Manross Court stated:
Both Sections 3 and 402(e) [of the Law] have been previously applied to a claimant's failure to acquire or maintain a valid state license. See, e.g., Jones v. Unemployment Compensation Board of Review, 513 Pa. 45, 518 A.2d 1150 (1986) (Section 3); Adams v. Unemployment Compensation Board of Review, . . . 484 A.2d 232 ([Pa. Cmwlth.] 1984) (Section 402(e)); Township of Darby v. Unemployment Compensation Board of Review, . . . 429 A.2d 1223 ([Pa. Cmwlth.] 1981) (Section 402(e)); Chacko v. Unemployment Compensation Board of Review, . . . 410 A.2d 418 ([Pa. Cmwlth.] 1980) (Section 402(e)). See also Robinson [v. Unemployment Compensation Board of Review], . . . 546 A.2d [750,] 752 [(Pa. Cmwlth. 1988)], where we state that 'off-duty misconduct which has a direct effect on claimant's job, such as an employee's failure to acquire or maintain a state license necessary for employment, may be analyzed under either section.'Manross, 572 A.2d at 50 n.3. Accordingly, although Claimant's matter was decided under Section 402(e) of the Law, it was not error for the UCBR to consider the Law's purpose as described within Section 3 of the Law.
For all of the above reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 7th day of March, 2014, the Unemployment Compensation Board of Review's April 25, 2013 order is affirmed.
/s/_________
ANNE E. COVEY, Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
CONCURRING OPINION BY JUDGE LEAVITT
I concur with the majority's holding that Claimant is ineligible for benefits under Section 402(e) of the Unemployment Compensation Law, 43 P.S. §802(e), by reason of his willful misconduct. I write separately to note my disagreement with the majority's conclusion that Claimant did not specify one of his arguments in his petition for review and, thus, waived it.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Pennsylvania Rule of Appellate Procedure 1513(d) requires a petition for review addressed to our appellate jurisdiction to contain, inter alia, "a general statement of the objections to the order or other determination." Pa. R.A.P. 1513(d). "The statement of objections will be deemed to include every subsidiary question fairly comprised therein." Id. In applying Rule 1513(d), this Court has stated:
Where a Claimant fails to include an issue in his petition for review, but addresses the issue in his brief, this court has declined to consider the issue, since it was not raised in the stated objections in the petition for review, nor 'fairly comprised therein'....Jimoh v. Unemployment Compensation Board of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006) (quoting Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991)). However, there is no requirement that the petition for review and the brief be "mirror images of one another." Bingnear v. Workers' Compensation Appeal Board (City of Chester), 960 A.2d 890, 893 n.6 (Pa. Cmwlth. 2008). So long as "the overall themes of the arguments raised are the same" in both documents, this Court will not find an issue to be waived. Id.
Our precedent has applied Rule 1513(d) to find waiver of an issue only where the issues in the petition for review and in the appellate brief cannot be reconciled. For example, in Jimoh, the claimant asserted in his petition for review that the Board erred because his two claims for benefits were treated inconsistently by the Department of Labor and Industry. In his brief, the claimant argued that, as a non-immigrant permanently residing in the United States under the color of law, he could not be categorically denied benefits while he awaited renewal of his expired work authorization. The issue addressed in the claimant's brief, i.e., his immigration status, was neither raised in his petition for review nor "fairly comprised therein." See also Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164 (Pa. Cmwlth. 1991) (finding waiver where claimant asserted in his petition for review that Board erred by not providing a transcript of hearing and in his brief argued that he had necessitous and compelling health reasons for quitting his job).
Here, Claimant's petition for review stated that he did not commit willful misconduct because it was through no fault of his own that he was unable to reinstate his driver's license within 180 days, as required by Employer's policy. In his brief, Claimant identifies two reasons why he did not commit willful misconduct: the position from which he was terminated did not require a driver's license and, alternatively, if he was actually terminated from his original supervisory position, he had good cause for not complying with Employer's policy because it was impossible for him to do so. While Claimant's petition for review and brief may not be "mirror images of one another," the overall themes of the arguments are the same: whether Claimant is ineligible for unemployment compensation benefits by reason of Employer's policy on maintenance of a driver's license.
Claimant lost his license for driving under the influence, which requires a one-year license suspension. --------
In holding otherwise, the majority treats an appellant's "issue" and "argument" as one and the same, but they are distinct. One issue may involve several legal arguments, and all arguments need not be raised in the petition for review. As noted, Rule 1513(d) requires that an appellate jurisdiction petition for review contain a "general statement of the objections to the order" under review. Pa. R.A.P. 1513(d). The purpose of Rule 1513(d) is to allow an appellate petition for review to be converted to an original jurisdiction pleading, or vice versa, where that becomes appropriate. Pa. R.A.P. 1513, note. Rule 1513(d) does not require the petitioner to anticipate, let alone identify, every argument he intends to make in support of his objections. Nor was Rule 1513(d) intended to be used as a weapon for striking an argument from a brief, as the Board is wont to do.
Claimant applied to amend his petition for review. In his original petition for review, Claimant had reserved the right to amend the petition once he received a copy of the transcript of the Referee's hearing. This Court disallowed the amendment, which was untimely. In any event, Claimant's proffered amendment was unnecessary given the length and detail of his petition for review, which contained 30 numbered paragraphs. Presumably, Claimant's attempt to amend the petition for review was generated by confusion caused by Rule 1513(d) and (e) as well as our jurisprudence thereunder. Simply, an appellate petition for review need not identify all arguments to be made in the appellate brief that will follow.
Turning briefly to the merits of the issue the majority finds waived, Claimant contends that he did not commit willful misconduct because the position from which he was terminated did not require a driver's license. Claimant asks the Court to treat his demotion from foreman, which requires a driver's license, to maintenance worker, which does not, as a transfer. This would require the Court to ignore the express terms of Employer's policy. It directs that where an employee required to maintain a driver's license loses that license, he must be demoted for a period of 180 days. The demotion can be followed by reinstatement where the employee's operating privileges are restored. Some employees subject to this policy may have their licenses suspended for a traffic offense and, thus, able to recover their operating privileges within 180 days. That Claimant's DUI requires a one-year suspension does not mean Employer's policy was not fair and must be set aside for Claimant. Claimant was demoted, as set forth in Employer's policy, not transferred.
Because Claimant's appeal that he had good cause not to comply with Employer's policy lacks merit, I concur in the majority's conclusion that he is ineligible for benefits under Section 402(e) of the Unemployment Compensation Law.
/s/_________
MARY HANNAH LEAVITT, Judge