Opinion
Argued September 11, 1980
October 17, 1980.
Unemployment compensation — Hearsay — Scope of appellate review — Willful misconduct.
1. In an unemployment compensation case, hearsay testimony, without corroboration, is properly ignored by the referee and by the Unemployment Compensation Board of Review. [291]
2. Where the Unemployment Compensation Board of Review does not capriciously disregard competent evidence in concluding that the employer failed to sustain the burden of establishing willful misconduct, its award of benefits must be upheld. [291]
Argued September 11, 1980, before Judges BLATT, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 1190 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Frank G. Van Horn, Jr., No. B-171530.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed. Referee affirmed. Applicant appealed to the Unemployment Compensation Board of Review. Appeal sustained. Benefits awarded. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard F. Faux, with him George W. Tracy, Tracy McNamee, for petitioner.
Stephen B. Lipson, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
In this unemployment compensation appeal, the employer, questions the allowance of benefits to the claimant by the board, which reversed the referee's conclusion that claimant, a trucking company dispatcher, was ineligible because discharged for willful misconduct.
Petitioner, Moore's Hauling, Inc.
Frank G. VanHorn, Jr.
Unemployment Compensation Board of Review.
Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936 Second Ex. Sess., P.L. (1937) 2897 as amended, 43 P. S. § 802(e).
Matters such as the alleged failure of claimant to clean his work area to the satisfaction of the employer, and claimant's procedures with respect to shipping overvalued freight, have been fairly characterized by the employer's brief as "occasions in which claimant did not perform his duties properly," thus indicating performance properly classifiable as incompetence rather than willful misconduct, and the referee therefore properly did not adopt those matters as reasons for his denial of benefits.
Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 97, 309 A.2d 165, 168-69 (1973), defining willful misconduct.
The charge identified by the employer's brief as the basis for denial of benefits, that claimant extracted pay raise information from company wastebaskets and spread gossip on such matters, was presented only by hearsay testimony, without corroboration, and was therefore also properly ignored by the referee, as well as by the board.
Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976).
The final charge relates to claimant's entry into the shop area of the employer's premises after being warned not to do so, but the board found that claimant thereafter did not go into the shop area without permission except to answer telephone calls from drivers. At argument, counsel for the employer was unable to take serious issue with that finding of the board. The board's decision thus shows sufficient justification for claimant going into the shop area after being warned on the point. We therefore cannot hold that the board capriciously disregarded competent evidence in reaching its conclusion that the employer failed to sustain the burden of establishing willful misconduct.
Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976), concerning good cause for noncompliance.
Houff Transfer, Inc. v. Unemployment Compensation Board of Review, 40 Pa. Commw. 238, 397 A.2d 42 (1979), stating applicability of the capricious disregard scope of review.
Accordingly, the board's decision is affirmed.
ORDER
AND NOW, this 17th day of October, 1980, the decision and order of the Unemployment Compensation Board of Review at No. B-171530, dated April 26, 1979, is affirmed.