Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of James A. Stiles, No. B-121982.
Odel Parkinson, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
This is an unemployment compensation case in which all the compensation authorities denied benefits to the claimant because they concluded that his unemployment was due to a discharge for willful misconduct, in violation of 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).*fn1
The claimant, James A Stiles, was employed for seven years as an offset helper by Federal Paper Board Company. On September 13, 1973, he was discharged by his foreman for allegedly threatening his foreman with bodily harm.*fn2
After the Bureau of Employment Security (Bureau) denied claimant benefits, he appealed to the Unemployment Compensation Board of Review (Board). A hearing was held before a referee on November 5, 1973. At the hearing, the plant supervisor, David Spry, testified on behalf of the employer. The foreman did not testify. The referee found against claimant and claimant then petitioned for, and the Board granted, a remand hearing before the referee. At this second hearing no one testified on behalf of the employer. Claimant, who now had the benefit of counsel, objected to the prior finding of the referee on the basis that the material testimony of the absent foreman was a necessary prerequisite to the findings.*fn3 After this hearing, the Board affirmed the denial of benefits and claimant therefore appealed to this Court.*fn4 Because of the confusion that exists on this issue and because of the numerous cases in this area, we have undertaken a thorough examination of the application of the current law to the facts in this case.
Claimant seems to confuse the law concerning hearsay's place in supporting findings and the law concerning the necessity of testimony in Board determinations. To truly understand the difference, we must first keep in mind the well-settled principle that in willful misconduct cases the burden of proof is placed upon the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973).*fn5
Keeping this principle foremost in our thoughts, we further note that the general rule in unemployment cases is that hearsay, properly objected to, does not constitute competent evidence to support a finding of the Board. Pellegrino v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 486, 303 A.2d 875 (1973). Equally axiomatic is the rule that if there is no objection and the evidence is admitted, the evidence may be given its natural probative effect as if it were in law admissible. Id. Further, observance of common law and statutory rules of evidence and technical rules of procedure is not required under the Act. Section 505, 43 P.S. § 825. The above general rules are applicable in willful misconduct cases. Pellegrino, supra; Philadelphia Coke Division v. Unemployment Compensation Board of Review, 6 Pa. Commonwealth Ct. 37, 293 A.2d 129 (1972). Therefore, claimant, who did not properly object to David Spry's testimony, cannot now complain that the Board considered the hearsay testimony in rendering its decision.
Claimant questions whether or not the Board erred as a matter of law in not requiring the testimony of the foreman. This question underscores the importance of the ...