Opinion
Argued September 14, 1979
October 24, 1979.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Burden of proof — Hearsay.
1. An employer asserting that an employe was discharged as a result of wilful misconduct and is thus ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, has the burden of proving such allegation. [591]
2. A finding of fact in an unemployment compensation case cannot be based solely upon hearsay evidence. [591]
Argued September 14, 1979, before Judges MENCER, BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 2019 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Russel Denshuick, No. B-162749.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed. Benefits awarded. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
James M. Penny, Jr., with him Judith G. Eagle, and Obermayer, Rebmann, Maxwell Hippel, for petitioner.
Elsa Newman, Assistant Attorney General, with her Gurujudha Singh Khalsa, Assistant Attorney General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
The Eaton Corporation (Employer) appeals the order of the Unemployment Compensation Board of Review (Board) affirming the referee and granting benefits to Russel Denshuick (Claimant).
Claimant had been employed as a production hardner for approximately seven years prior to his discharge. The Employer indicates that Claimant was discharged for drinking an intoxicating beverage during work hours on April 10, 1978, in violation of company rules.
Upon appeal from an order of the Bureau of Employment Security denying benefits, the referee reversed and granted benefits to Claimant. In so doing the referee ruled that the Employer failed to carry his burden of proof that Claimant's actions constituted willful misconduct.
Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e):
An employe shall be ineligible for compensation for any week —
. . . .
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . .
In cases involving allegations of willful misconduct the employer has the burden of proving the employee's ineligibility for benefits. Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commw. 599, 388 A.2d 785 (1978). In the instant case the Employer's evidence consisted of the testimony of its employment manager who had no firsthand knowledge of the alleged incident, and several statements from Employer's representatives who allegedly did witness the incident but did not appear to testify. The referee admitted the written statements as hearsay evidence. The Claimant testified personally. He said in unequivocal terms that he was not drinking at the time and place indicated by the Employer and that he had never admitted drinking as alleged in one of the written statements admitted as hearsay evidence. Confronted with our oft repeated holding that a finding of fact may not be based solely upon hearsay evidence, Kiriluk v. Unemployment Compensation Board of Review, 41 Pa. Commw. 229, 398 A.2d 772 (1979), the referee and the Board concluded correctly that the Employer had failed to meet its burden of proof.
Order affirmed.
ORDER
AND NOW, this 24th day of October, 1979, the order of the Unemployment Compensation Board of Review dated August 4, 1978, granting benefits to Russel Denshuick is hereby affirmed.