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DAVID C. BEARD v. COMMONWEALTH PENNSYLVANIA (05/03/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 3, 1979.

DAVID C. BEARD, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT

Appeal from the Order of the Department of Public Welfare in case of Appeal of David C. Beard, dated November 22, 1977.

COUNSEL

Charles A. Bierbach, for petitioner.

Linda M. Gunn, Assistant Attorney General, for respondent.

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

Author: Mencer

[ 42 Pa. Commw. Page 394]

David C. Beard (claimant) has appealed a decision of the Department of Public Welfare (Department) terminating claimant's assistance under Aid to Families with Dependent Children (AFDC). The Department's action was predicated on conduct by the claimant, which the Department contends was tantamount to refusing without good cause two separate bona fide job referrals from the Bureau of Employment Security, in violation of Section 432.3 of the Public Welfare Code (Code).*fn1 We reverse and remand.

[ 42 Pa. Commw. Page 395]

On August 2, 1977, the Huntingdon County Board of Assistance (County Board) notified claimant of its intent to terminate his AFDC assistance as of August 23, 1977 because of claimant's alleged failure to accept two bona fide job referrals in July 1977. The County Board alleged that claimant discouraged employment by the submission to prospective employers of assertions of physical infirmities not documented in the Board's records.*fn2

Claimant appealed the County Board's decision to the Department and was afforded a fair hearing. At the ensuing hearing, the County Board relied exclusively on documentary evidence, objected to by claimant's counsel as hearsay, to substantiate its decision. This evidence consisted of two letters from prospective employers to the Board detailing their reasons for not hiring the claimant, two referral and placement reports from the Bureau of Employment Security stating why claimant was rejected, and a letter from Dr. V. Rao reporting the results of an orthopedic evaluation completed on June 6, 1977 for the Bureau of Vocational Rehabilitation. The gist of the first four documents was that claimant was refused employment because

[ 42 Pa. Commw. Page 396]

    he told the employers he was physically unable to do the work required as he had a bad back and could not lift over 25 pounds. Dr. Rao's letter indicated that claimant could "do any type of work which does not involve lifting more than 100 pounds." Claimant testified that he had informed both employers of his disabilities, including his inability to lift more than 25 pounds. Moreover, both the claimant and his wife testified to the debilitating nature of his infirmities.

The hearing examiner reversed the Board and ordered a continuation of claimant's assistance. Pursuant to 55 Pa. Code § 275.4(h)(4),*fn3 the Department's Hearing and Appeals Unit (Appeals Unit) reversed the hearing examiner on the basis of Dr. Rao's letter and there being no evidence that claimant could not do the work required. Upon a petition to reconsider, the Appeals Unit reaffirmed its decision and this appeal followed.

Claimant contends that the Appeals Unit erred because its decision to reverse the hearing examiner was based solely on properly objected to hearsay. We agree.

[ 42 Pa. Commw. Page 397]

In Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 527, 367 A.2d 366, 370 (1976), we set forth the rule regarding the effect of hearsay in an administrative hearing:

(1) Hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board. . . . (2) Hearsay evidence, admitted without objection, will 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, but a finding of fact based solely on hearsay will not stand. (Citations omitted.) (Emphasis in original.)

See also Elkowitz v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 528, 387 A.2d 160 (1978); Bracy v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 173, 382 A.2d 1295 (1978). The documents relied on by the Appeals Unit for its decision clearly are hearsay, being out-of-court statements offered for the truth of the matter asserted therein. See C. McCormick, Law of Evidence 460 (1954). Although it is conceivable that some of the documents could fall within an exception to the hearsay rule, see, e.g., the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108, there was no attempt before the hearing examiner to lay a proper foundation for their admission under an applicable exception. Without such an offer, we are unable to determine whether an exception would apply. See Jones Appeal, 449 Pa. 543, 297 A.2d 117 (1972). Therefore, being objected-to hearsay, the documents are not competent evidence to support the Appeals Unit's decision.

Without the hearsay, the only remaining evidence is claimant's testimony pertaining to his alleged incapacity. If credible, it could constitute evidence to support a decision that his behavior with respect to

[ 42 Pa. Commw. Page 398]

    the job referrals was justified. The hearing examiner, however, failed to resolve the issue of claimant's credibility by failing to make any findings of fact on the nature and extent of claimant's alleged disabilities.*fn4 Without these findings, we are unable to determine whether claimant's conduct was tantamount to a refusal of employment without good cause. Thus, we must remand for findings, by the hearing examiner, on this essential issue. See Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975).

Because of our disposition of this case, we need not here reach claimant's due process attack on 55 Pa. Code § 275.4(h)(4).

Order

And Now, this 3rd day of May, 1979, the order of the Department of Public Welfare, dated November 22, 1977, in the above captioned case, is vacated, and the case is remanded to the Hearing and Appeals Unit of the Department of Public Welfare for further proceedings not inconsistent with this opinion.

Disposition

Order vacated. Case remanded.


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