Opinion
Argued March 13, 1980
April 9, 1980.
Unemployment compensation — Hearsay — Willful misconduct — Substantial evidence.
1. In an unemployment compensation case, hearsay evidence, properly objected to, is not sufficient evidence to support a finding of the Unemployment Compensation Board of Review. [411]
2. In an unemployment compensation case, the burden is on the employer to prove willful misconduct. [412]
3. Where the only evidence supporting the findings of the Unemployment Compensation Board of Review is uncorroborated hearsay, the record is devoid of the substantial evidence necessary to support a finding of willful misconduct. [412]
Argued March 13, 1980, before President Judge CRUMLISH and Judges ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 2386 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Angel Luis Montanez, No. B-163911.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
Michael Goldberg, for petitioner. Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Claimant Angel Luis Montanez appeals from a decision of the Unemployment Compensation Board of Review which affirmed a referee's decision holding that claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802(e) because his discharge from Calder Manufacturing Company was precipitated by an act of willful misconduct, allegedly failing to report off to the employer before being absent.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Claimant did not come to work from August 29 to September 2, 1977, but the factual dispute was whether or not claimant reported off to his employer before each absence. The referee found that claimant did fail to report, relying on hearsay testimony of employer's representative, given under objection, which was the only evidence to contradict the testimony of claimant and his witnesses. The employer's representative testified that claimant failed to report off on any of the days in question, but that representative was not the person who took calls from employees reporting their absence to their employer. Moreover, the employer provided no records to support the claim that claimant failed to report off before his absences.
Claimant testified that he reported off by telephoning his employer on four of the days in question, and that his niece reported him off by telephoning his employer on the fifth day. Claimant was supported by witnesses who testified to seeing and hearing him make three of the calls he claimed.
Hearsay evidence, properly objected to, is not sufficient evidence to support a finding of the board. Elkowitz v. Unemployment Compensation Board of Review, 35 Pa. Commw. 528, 387 A.2d 160 (1978).
The burden is on the employer to prove willful misconduct. Gallagher v. Unemployment Compensation Board of Review, 36 Pa. Commw. 599, 388 A.2d 785 (1978). Because the only evidence supporting the board's findings was uncorroborated hearsay, the record is devoid of substantial evidence necessary to support a finding of willful misconduct. Therefore, we must hold that the employer failed to meet his burden of proof.
Accordingly, we reverse the decision of the board.
ORDER
AND NOW, this 9th day of April, 1980, the decision of the Unemployment Compensation Board of Review is hereby reversed and this case is remanded for computation of benefits.