Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas R. Lee, No. B-171561.
Faye R. Cohen, with her Alan M. Lerner, Cohen, Shapiro, Polisher, Shiekman and Cohen, for petitioner.
Steven R. Marcuse, Assistant Attorney General, with him Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for the Commonwealth, respondents.
Lawrence Goldberg, with him Robert H. Dickman, Goldberg, Frankel & Dickman, for Muratone Co., Inc., respondents.
President Judge Crumlish and Judges Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.
[ 52 Pa. Commw. Page 172]
Thomas R. Lee (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which denied him benefits after a finding that he was discharged from his employment for willful misconduct.*fn1
[ 52 Pa. Commw. Page 173]
The claimant was employed as a painter by the Muratone Company, Inc. (employer). In December 1978 an incident occurred at a work site which led to his discharge. He claims that his discharge was actually the result of a law suit which he and other employees had instituted against the employer and he argues that the referee's findings to the contrary were based solely on hearsay. The employer maintains, however, that the claimant refused a work assignment which was within his duties and was therefore discharged.
In a discharge case based upon willful misconduct, the burden is upon the employer to prove such conduct. Unemployment Compensation Board of Review v. Atlantic Richfield Co., 22 Pa. Commonwealth Ct. 511, 349 A.2d 496 (1976). Here, however, the employer's only witness at the referee's hearing was its president who, while testifying to the circumstances leading up to the claimant's discharge, frankly admitted that he had no first-hand knowledge of the alleged misconduct.*fn2 The claimant's case consisted only of his own
[ 52 Pa. Commw. Page 174]
testimony to the effect that he did not refuse the work assignment.
While it is the province of the fact-finder, of course, to resolve issues of credibility, it is nevertheless true that the findings must be based upon substantial competent evidence. The testimony of the employer here, however, was clearly hearsay, and being also without corroboration by any competent evidence in the record, it cannot support a finding of fact and the employer's burden of proof was not thereby ...