S. Ratkovich v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Scott Ratkovich, :
Petitioner :
:
v. : No. 695 C.D. 2016
: SUBMITTED: November 4, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE HEARTHWAY FILED: February 21, 2017
Scott Ratkovich (Claimant) petitions pro se for review of an order by
the Unemployment Compensation Board of Review (Board) affirming the decision
of a referee. The referee’s decision reversed the Department of Labor and
Industry’s (Department) finding that Claimant was eligible for benefits. The Board
determined that Claimant was ineligible for benefits under Section 402(e) of the
Unemployment Compensation Law (Law) relating to willful misconduct.1 We
affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§
751-918.10.
Claimant was employed by the United States Postal Service
(Employer) from April 15, 2006 until October 16, 2015 as a full-time rural mail
carrier. In August 2014, Claimant’s driver’s license was suspended for three years
due to a criminal conviction for driving under the influence (DUI). Though a valid
driver’s license is required for employment as a mail carrier, Employer has a
policy under which a mail carrier with suspended driving privileges may enlist the
aid of a licensed third-party for a maximum period of one year. Pursuant to this
policy, Claimant obtained the assistance of a licensed driver on his route on
October 16, 2014. After the one year period, Claimant was notified by Employer
that he would be terminated because his driver’s license had not been reinstated,
and he could no longer continue to use a licensed third-party to assist him.
On October 18, 2015, Claimant filed for unemployment compensation
benefits. On November 10, 2015, a Department service center determined that
Claimant was not ineligible for benefits under Section 402(e). Employer appealed
that determination. A hearing was held on January 6, 2016, and a referee reversed
the Department’s determination, finding that Claimant was ineligible for benefits
under Section 402(e) because his employment required a valid driver’s license and
Claimant was at fault for the loss of his license. Claimant appealed the referee’s
decision to the Board, which adopted and incorporated the referee’s findings and
conclusions. This appeal followed.2
2
Our 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. Kirkwood v. Unemployment Comp. Bd. of Review, 525 A.2d
841, 843-44 (Pa. Cmwlth. 1987).
2
The issue in this case is whether Claimant’s driver’s license
suspension constitutes willful misconduct under Section 402(e). The statute states
that a claimant shall be ineligible for unemployment compensation when the
claimant’s unemployment was due to a discharge or suspension for willful
misconduct connected with the work. 43 P.S. § 403(e). We have previously
determined 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)
(citing Varmecky v. Unemployment Comp. Bd. of Review, 432 A.2d 635 (Pa.
Cmwlth. 1981)).
In this case, Claimant lost his driver’s license for three years due to
his conviction for DUI. He does not challenge the determination that the
suspension was his fault. Nor does he challenge that he was unable to regain his
driver’s license at the conclusion of the one year grace period provided by his
Employer. Rather, Claimant argues that the Board erred in finding that he
committed willful misconduct because he was driving his personal vehicle and was
not on duty when he drove under the influence. We disagree.
Incidents leading to the loss of driving privileges that are the fault of
the employee can constitute willful misconduct, regardless of whether the incident
occurred in the employer’s vehicle or the employee’s personal vehicle. See
Manross v. Unemployment Comp. Bd. of Review, 572 A.2d 49 (Pa. Cmwlth. 1990)
(claimant’s suspended license stemming from an off-duty arrest and DUI
3
conviction constituted willful misconduct); see also Williams, 651 A.2d at 709(claimant’s license suspension resulting from a failure to pay fines levied against
his personal vehicle constituted willful misconduct). The willful misconduct
determination hinges on whether the license suspension was Claimant’s fault rather
than the timing of the reason for the suspension or the ownership of the vehicle
involved. Because Claimant’s criminal actions resulted in a license suspension
that made the execution of his work duties impossible at the conclusion of a one-
year grace period, his discharge was due to willful misconduct. Manross, 572
A.2d at 50.
Claimant also argues that Employer should have either permitted
Claimant to continue paying for a supplemental driver beyond the allotted one-year
period, or reassigned Claimant to a position that would not require a valid driver’s
license. However, arguments that Employer should have offered him additional
accommodations to preserve his employment are without merit. Claimant was
terminated for willful misconduct. The fact that Claimant can imagine Employer
responses to his willful misconduct other than termination does not render him
eligible for benefits.
The Board did not err in determining that Claimant was ineligible for
benefits under Section 402(e) of the Law. Accordingly, we affirm.
__________________________________
JULIA K. HEARTHWAY, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Scott Ratkovich, :
Petitioner :
:
v. : No. 695 C.D. 2016
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 21st day of February, 2017, the order of the
Unemployment Compensation Board of Review is affirmed.
__________________________________
JULIA K. HEARTHWAY, Judge