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OTIS BRACY v. COMMONWEALTH PENNSYLVANIA (03/07/78)

decided: March 7, 1978.

OTIS BRACY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Otis Bracy, No. B-133770.

COUNSEL

James E. Mahood, for appellant.

Reese F. Couch, Assistant Attorney General, with him Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 34 Pa. Commw. Page 174]

This is an appeal of a decision by the Unemployment Compensation Board of Review (Board) denying appellant (claimant) unemployment compensation benefits pursuant to 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. ยง 802(e). We affirm.

Claimant was discharged from his employment as a laborer on June 20, 1975 after he failed to report to work the day before. He appealed an adverse determination by the Bureau of Employment Security (Bureau) denying him benefits and at a hearing he and a fellow employee testified as to the circumstances of his discharge. The employer did not appear but Bureau records, including a summary of the Bureau's telephone interview with a representative of the employer, were placed into the record by the referee without objection. The Board's findings of fact based on this hearing included the following: "On June 19, 1975 the claimant, who had previously been warned about absenteeism, was scheduled to work; the claimant took the day off without permission and didn't report until June 20, 1975. 3. On June 19, 1975 and June 20, 1975 the claimant was informed by the employer that he was discharged. 4. The claimant was discharged because of a history record of absenteeism."

Section 402(e) of the Law provides that an employee shall be ineligible for unemployment compensation benefits during any week when "his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . ." Absenteeism, or a failure to report an absence

[ 34 Pa. Commw. Page 175]

    from work, has been found to constitute willful misconduct in that such conduct amounts to a disregard of the standards of behavior an employer can rightfully expect from an employee. Holtzman v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 525, 372 A.2d 31 (1977); Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). As such the findings of fact of the Board in this case would support the legal conclusion of willful misconduct.

Claimant, however, seeks to avoid this result by arguing that the findings of the Board are not supported by substantial competent evidence. His attack on these findings is premised on the supposition that the only evidence to support them is based on the Bureau's summaries of telephone conversations between a Bureau representative and a representative of the employer. Since these summaries are undeniably hearsay, claimant argues they are not competent evidence to support a finding of fact.

With respect to the evidentiary effect to be given hearsay evidence in administrative proceedings such as unemployment compensation cases this Court has established the rule that hearsay evidence, properly objected to, is not competent to support a finding of the Board, but hearsay evidence, admitted without objection, will be given its natural and probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976). Thus, such summaries as those at issue here, although they cannot form the sole basis for ...


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