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RUFUS BELTON v. COMMONWEALTH PENNSYLVANIA (06/20/79)

decided: June 20, 1979.

RUFUS BELTON, 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 Rufus Belton, No. B-144108-B.

COUNSEL

Terry Fromson, with him Rita L. Bernstein, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for appellee.

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

Author: Mencer

[ 43 Pa. Commw. Page 439]

Rufus Belton (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) denying him benefits because of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5,

[ 43 Pa. Commw. Page 4401936]

, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Claimant was employed as a letter carrier by the United States Postal Service (employer) in Philadelphia for approximately 2 1/2 years prior to his discharge. On November 11, 1976, while loading parcel post on his delivery truck, claimant asked his supervisor, Mr. Circilo, for a handtruck. Mr. Circilo informed claimant that none was available but he suggested claimant use a four-wheeled hamper. Claimant declined the use of the hamper because it would not fit into the truck with the packages. Mr. Circilo made room for the hamper by rearranging the packages and then ordered claimant to put the hamper into the truck. Claimant again refused, claiming he could not, by himself, lift the hamper through the side of the truck and that to do so would be a safety hazard as he might fall on the slippery garage floor. Mr. Circilo repeated his order and claimant refused a third time to comply. Consequently, claimant, having a prior 14-day suspension on his record for refusing to follow a supervisor's instructions, was discharged for insubordination.

Both the Bureau and the referee denied claimant's application for benefits, based on Section 402(e) of the Act, and were affirmed by the Board. Claimant's appeal to this Court followed.

At the hearing before the referee, the employer was represented by Mr. Hagens, a personnel assistant, who had no personal knowledge of the events leading to claimant's discharge and, while testifying, merely referred to the disciplinary documents compiled by the employer. Claimant's counsel objected to Mr. Hagens' testimony as hearsay and argues here that the testimony must be stricken on the basis of our decision in Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367

[ 43 Pa. Commw. Page 441]

A.2d 366 (1976). In Walker, we stated that hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board. Since Mr. Hagens' testimony was clearly hearsay, see Harrison v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 364, 383 A.2d 965 (1978), and was ...


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