Thursday, November 01, 2018

UC - appeal - waiver of issue - UCBR argument held to be "sophistry"

Patnesky v. UCBR – Cmwlth. Court (2-1) – unreported* memorandum decision

The Court held that the employer failed to prove willful misconduct of a state driver’s license examiner who issued a replacement ID card for the “incapacitated” child of a co-worker.   The Court said that the claimant’s conduct did not violate a work rule, which it found to be ambiguous, thus resulting, at worst, in an inadvertest or negligent violation of the rule rather than the required deliberate violation.   It is well established that noncompliance with a work rule in itself does not amount to a “deliberate violation.” Oyetayo, 110 A.3d at 1121; Chester Community Charter School v. UCBR, 138 A.3d 50, 54 (Pa. Cmwlth. 2016) (“[a]n inadvertent or negligent violation of an employer’s rule may not constitute willful misconduct.”).   

UCBR argument that claimant had waived an issue was held to be “sophistry.”
The more significant part of the opinion  rejected the Board’s position that claimant had waived an argument. 

At the outset, we address the Board’s waiver argument, which it makes in virtually every brief it files with this Court. The Board asserts that because the statement of questions in Claimant’s brief raises only the issue of whether Claimant committed disqualifying willful misconduct under Section 402(e) of the Law, Claimant cannot challenge the Referee’s “findings of fact,” which in this case include a statement that Claimant violated Employer’s confidentiality policy because [the incapacitated child] “was not present during the transaction.” . . . .Finding of Fact No. 6.   

By couching the legal conclusion that Claimant violated the policy as a “finding of fact,” the Referee attempted to place the proverbial rabbit in the hat. The Board unquestioningly adopted this “finding of fact” and now asserts that the ultimate legal issue in this case is beyond appellate review. This is sophistry.

Whether Claimant’s actions constituted disqualifying willful misconduct is a question of law fully reviewable by this Court. Oyetayo v. UCBR, 110 A.3d 1117, 1122 (Pa. Cmwlth. 2015). In deciding that legal issue, this Court must determine whether Claimant’s actions.  violated Employer’s policy as was concluded by the Board. We reject the Board’s waiver argument and proceed to the merits of Claimant’s appeal.


*An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716