Myers v. Unemployment Compensation Board of Review

ZAPPALA, Justice,

dissenting.

In McLean v. Unemployment Compensation Board of Review, 476 Pa. 617 , 383 A.2d 533 (1978), we stated that the question of whether an employee’s actions constitute willful misconduct is a question of law subject to our review. We applied the definition of willful misconduct articulated by the Superior Court in Moyer Unemployment Compensation Board of Review, 177 Pa.Super. 72 , 110 A.2d 753 (1955):

‘Willful misconduct” ... has been held to comprehend an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer’s interest or of the employe’s duties and obligations to the employer.

476 Pa. at 620 , 383 A.2d at 535 (Citation omitted.)

The evidence introduced by the employer was sufficient to establish negligence of the employee indicating an intentional disregard of the employer’s interest and of his duties and obligations to the employer. Therefore, the employee’s actions constituted willful misconduct.

During the six-month period preceding his dismissal by Yourga Trucking, Inc., Dennis Myers was involved in three accidents resulting in damages in excess of IHOOO. 1 The first of the three accidents occurred on May 1,1989. The next two *383 accidents occurred within only twenty-four hours of each other — on September 4, 1989 and September 5, 1989.

Myers contends that the only competent evidence regarding the accidents was his own testimony. Myers overlooks the evidence introduced by his employer consisting of Myers’s handwritten statements contained in accident reports prepared by him shortly after each of the accidents. Myers’s own handwritten statements and testimony standing alone were sufficient evidence to support the referee’s conclusion that Myers was negligent in the operation of his employer’s vehicle in the three accidents.

At 7:10 a.m. on May 1, 1989, Myers was involved in an accident at an intersection. In a written report of the accident, prepared for Liberty Mutual Insurance Company, Myers gave the following description of the collision:

Veh 1 (Myers’s vehicle) making rt turn onto Vaxhall Rd from Bennet Rd with turn single (sic) working, (pretrip done at 630 am same day) Veh. 1 was well into right turn at time of impact. Veh 2 stated he tried to back up. If so how could he be in intersection at time of impact. Veh rechecked at 750 am by driver to ensure that singles (sic) working.

(R. Item No. 3, p. 51). Myers signed the written form containing the accident description.

Myers’s testimony relating to the May 1 intersectional collision follows:

QCL: Can you describe for us what happened on May 1, 1989?

AC: Yes, I made delivery of a load at Union Steel Corporation, Union, Pennsylvania — New Jersey, I’m sorry. And was told at that time by a dispatcher to return home. So I was leaving to go back over to Interstate 78 by the same routes — street routes that I had taken to go in there. And this was the easiest way in and out of the company. And I was making a right hand turn off of Bennett Road onto Vox Hall (PHONETIC) Road. Now Vox Hall Road and Bennett Road come together at a traffic light and a— *384 not an 90 degree angle, but a — which would be for me, more than a 90 degree angle turn, a right hand turn. There’s no indications on the road. It’s (INAUDIBLE) pavement or by signs that there is more than one lane of traffic.

QCL: On which road?

AC: On Bennett Road. The road that I was on. So I stayed to the center of the lane, next to the double yellow line to make it easier for myself to make the right hand turn, beings that I would be turning past the 90 degree angle. I waited for the light to change. I had my turn signals on, indicating I was going to make a right hand turn. At that time, when the light changed, I glanced quickly into the mirror, and into a small door window that’s on the right hand side of the truck. There was nobody beside me. I then proceeded to make my right hand turn. Three quarters of the way into the turn, and this is at a point to where the tractor and the trailer are turned at such a point where if look out your mirrors, you cannot see the full' length of your unit. You can only see the front part of the trailer. At that time I felt a nudge, so I immediately stopped. I put my four-way — no, I left my right hand turn signal on. I set the parking brakes on the unit. I got down, walked around the unit and a pickup truck had pulled up onto the right hand side of the unit while I was making the right hand turn, and I know that because there was nobody beside me when I started to make the turn. And impact was made by the — what we call the lead axle. The front axle on the trailer, and the right hand — the left hand driver’s door of the vehicle.

(N.T. 2/2/90, pp. 22-23).

The second accident occurred on September 4, 1989, at 9:00 p.m. when Myers’s vehicle struck an automobile while he was changing lanes. The written accident report prepared for the insurance company and signed by Myers contained his description of the collision:

I was in left center lane on 1-8 (61 mile post) turned on right turn single, (sic) checked both mirrors and lower door *385 window there was no traffic on my right side. I starte (sic) to change lanes to my right at aprox (sic) half way into right lane. I felt the impact of someone hitting the right side of my vehicle. I checked left side of my vehicle and went back into left center lane, then seen (sic) a small white car go into left lane. I then got to the right berm of roadway, the (sic) other driver pulled up behind my vehicle and said that they both were OK, and that his wife was pregant (sic). He called the State Police. After patrolmen arrived, he (driver of car) decided to have wife taken to hosp. (sic) See attached sheet.

White car go accross (sic) in front of my vehicle and go into the far left lane. I then got to the right berm of roadway. The other driver (car) pulled up behind my vehicle and said that they both were OK and that his wife was pragnet. (sic). He called State Police. After Patrolmen arrived, he (driver of car) decided to call ambiance (sic) to take his wife to hosp (sic). After leaving there was another car in aprox (sic) the same position along beside my vehicle. And at that location it is very hard to see them at night.

(R. Item No. 3, pp. 55-57). At the hearing, Myers also testified that he could not see the white car beside his truck when he was changing lanes and collided with the car. (N.T. 2/2/90, pp. 29-30).

Only sixteen hours later, Myers was involved in yet another accident. The written accident report prepared and signed by Myers detailed the accident which occurred on September 5, 1989, at 12:35 p.m.:

Phill Stout and I were northbound on State Route 31 (N.J.). After we crossed over 1-78 I noticed a red pickup truck comming (sic) up behind us at a very high rate of speed. I told Phil about him on the C.B. At that time I saw 3 school buses getting onto 31 North at an on ramp and that they were not going to yeld (sic) to traffic, forcing Phill to move to left lane to keep from being hit the third bus was forcing me to move over also. By this time the red pick-up had passed me. Another car then came to a complete stop *386 in front of Phil to make a left turn. Phil got stoped (sic). The red pick-up got stoped aprox (sic) 3 feet from the rear of Phils (sic) truck. I had started brakeing when I seen Phils brake lights, (sic). I was aprox (sic) 100 to 150'feet behing Phills truck (sic). I was able to slow down to aprox (sic) 10 mph before impacting the rear of red pick-up. Just before impact the P/U (pick-up) started to go around Phil on left but then pulled back in behind him. The driver of the pick-up told Phil that he had been making real good time before this happened.

(R. Item No. 3, pp. 9-10, 20).

Myers described his rear-end collision at the hearing: QCL: Now, directing your attention to the next day, can you describe the accident which occurred the next day?

AC: Yes, Phil Stout and I had just loaded at Brotherhills (PHONETIC) Pennsylvania. We were proceeding up Route 31. When we were coming up to Interstate 78 Junction, the road is a two-lane road — one lane northbound and one lane southbound. When you approached an Interchange cross over, the lanes widen out and become two lanes in each direction. Immediately upon going onto the two lane section, a red Ford pickup who was coming up from my rear at a very high speed proceeded to pass me. I picked up the microphone to the CB radio and informed Mr. Stout to be cautious of this pickup where he, in our opinion was exceeding the speed limit. At that time we were approaching an on-ramp from Interstate 78. Three school buses coming off the ramp onto the northbound lanes, failed to yield right of way. The first school bus forced Mr. Stout’s unit over to the left lane and the third school bus had forced me over to the left lane. The pick up truck is still making an attempt to pass Mr. Stout on the left in the southbound lanes. Everything was coming to a halt, because the vehicle in front of Mr. Stout decided to stop and make a left hand turn off the center lane. We were all coming to a halt. The pickup truck moved in between Mr. Stout’s unit and mine. I was able to slow down to approximately *387 ten miles per hour before a light impact, hitting the right rear bumper whereas the right front bumper of the pickup truck impacted the left rear of Mr. Stout’s truck.

(N.T. 2/2/90, pp. 27-28).

Each of the three accidents was described in detail by Myers himself in his written statements and during his testimony. From Myers’s descriptions alone, the referee was presented with sufficient competent evidence to support his finding that Myers was negligent in the operation of his employer’s vehicle. The referee could fairly conclude that (1) the first accident resulted from Myers’s making a right-hand turn from the left lane; (2) the second accident occurred when Myers failed to observe an approaching vehicle and made an improper lane change which caused the collision; and (3) the third accident, a rear-end collision, was caused by Myers’s failure to control his vehicle.

Evidence of a series of accidents, attributable to negligence, occurring periodically and with consistent regularity, which produce substantial financial loss to the employer is sufficient to support the conclusion that an employee is guilty of willful misconduct. Walton v. Unemployment Compensation Board of Review, 96 Pa.Cmwlth. 472 , 508 A.2d 380 (1986); Coulter v. Unemployment Compensation Board of Review, 16 Pa. Cmwlth. 462, 332 A.2d 876 (1975). Disregarding the police reports, Myers’s own testimony established with sufficient certainty that a series of three accidents occurred within a five-month period, that the accidents resulted in over $14,000 in damages, and that the accidents were attributable to the negligence of Myers. I would affirm the Commonwealth Court’s order affirming the order of the Unemployment Compensation Board of Review.

FLAHERTY and CAPPY, JJ., join in this Dissenting Opinion.

. The employer had also received a report by the Pennsylvania State Police regarding a fourth accident on July 25, 1989, involving Myers. The hit-and-run accident involved a vehicle lhat had been hit by a Yourga truck that had drifted backwards. The employer’s dispatch records indicated that Myers was the only Yourga driver who was in the vicinity on that date. Myers admitted that he was at the truck stop where the accident occurred on that date, but denied any involvement in the accident. (N.T., 2/2/90, p. 24). The referee concluded Myers was not involved in the accident.