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.
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*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
