Opinion
October 14, 1982.
Unemployment compensation — Scope of appellate review — Error of law — Findings of fact — Substantial evidence — Hearsay — Wilful misconduct — Absences.
1. In an unemployment compensation case where the party with the burden of proof prevailed below, review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether findings of fact are supported by substantial evidence. [375]
2. In an unemployment compensation case hearsay admitted without objection can be given its natural probative weight when corroborated by any competent evidence in the record. [376]
3. Failure to report absences as required by rules of an employer can properly be held to constitute wilful misconduct precluding receipt of unemployment compensation benefits by an employe discharged therefor. [376]
Submitted on briefs September 13, 1982, to President Judge CRUMLISH, JR. and Judges BLATT and MacPHAIL, sitting as a panel of three.
Appeal, No. 1654 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in cases of In Re: Claim of Baudilio Garcia, No. B-191473, and In Re: Claim of Baudilio Garcia, No. B-195824.
Applications with the Office of Employment Security for unemployment compensation benefits. Applications denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed. Application for reargument filed and denied.
David A. Scholl, for petitioner.
James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Baudilio Garcia (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits on the grounds that he had been discharged because of 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).
The record indicates that the claimant was discharged from his position as a truck helper/driver for the Bethlehem Steel Corp. (employer) in early December of 1979. He was subsequently reinstated by the employer after union intervention and he entered into an agreement with the employer wherein he was put on notice that any further acts of absenteeism or unfitness to work would result in his discharge. On August 18, 1980, he failed to report to work and also failed to report such absence to his employer. He was then discharged.
The agreement provided: "That any further incidents of absenteeism, being unfit for work, failing to report off from work, or being an undesirable employee will result in your immediate suspension with intent to discharge." and "That you are placed on probation for a period of two (2) years." (emphasis added).
Where, as here, the party with the burden of proof has prevailed below, our scope of review is, of course, limited to questions of law and a determination as to whether or not the Board's findings are supported by substantial evidence. Jula v. Unemployment Compensation Board of Review, 48 Pa. Commw. 353, 409 A.2d 953 (1980).
The burden of proof as to willful misconduct rests with the employer. Lee v. Unemployment Compensation Board of Review, 57 Pa. Commw. 480, 426 A.2d 757 (1981).
The claimant's major contention is that the Board's decision upholding the referee's denial is not supported by substantial evidence in that the bulk of the evidence was presented in the form of employer personnel records and are, as such, hearsay. The question of the applicability of the hearsay rule in unemployment cases has been answered by the guidelines set by this Court in Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976). There we analyzed the prior case law on this topic and enunciated two clear-cut rules, the appropriate rule for this case being that, where the hearsay is admitted without objection, this evidence is to be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record. Id. Here it is clear that there is other competent evidence in the record, both from the testimony of the employer's representative and from the testimony of the claimant himself. Indeed, he has admitted in his Petition for Appeal to the Board of Review that he did not report off on the day in question. The Board's findings, therefore, are clearly supported by substantial evidence in the record.
Willful misconduct is not defined in the Law, but decisions of this Court have delineated its scope. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 309 A.2d 165 (1973). We have also held that failure of the claimant to report his absence, as required by the employer's rules is willful misconduct. Donahue v. Unemployment Compensation Board of Review, 42 Pa. Commw. 139, 40 A.2d 251 (1979).
For all of the above-stated reasons, the decision of the Board, denying benefits, is affirmed.
Inasmuch as we have resolved this matter in the Board's favor on the willful misconduct issue, we need not address its argument concerning the applicability of the doctrine of res judicata.
ORDER
AND NOW, this 14th day of October, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned case is hereby affirmed.