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JOHNNY MILLER v. COMMONWEALTH PENNSYLVANIA (06/07/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 7, 1982.

JOHNNY MILLER, 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 Johnny Miller, No. B-189150.

COUNSEL

William Taggart, with him Kenneth A. Zak, and James A. Montero, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Rogers and Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 67 Pa. Commw. Page 103]

Johnny Miller appeals from an Unemployment Compensation Board of Review order denying benefits.*fn1 We affirm.*fn2

This case involves a testimonial conflict. Urick Foundry (employer) contends that Miller, an automated molding machine conveyor belt operator, was

[ 67 Pa. Commw. Page 104]

    ordered to clean the working area when the machine was not functioning. Miller allegedly refused, replying that he was too busy and that cleanup was not his job. After being told that refusal would result in a discharge, Miller persisted and was fired.*fn3

Miller, on the other hand, contends that he refused because the machine was operating and it was impossible to do both things at the same time. He alleges that he opted to operate the machine and ignore the clean-up order, which he suggests was in the employer's best interest.

The burden of proving willful misconduct is on the employer, Southeastern Pennsylvania Transportation Authority v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 10, 11, 422 A.2d 905, 906 (1980). When the employer prevailed below, our scope of review is limited to questions of law and to a determination of whether or not the Board's findings are supported by substantial evidence. Maxwell v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 604, 605, 423 A.2d 430, 431 (1980). Fact findings are conclusive on appeal so long as the record contains substantial supporting evidence. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).

[ 67 Pa. Commw. Page 105]

Miller contends that the referee's findings were based on hearsay, hence were not supported by substantial evidence. The employer was represented at the hearing by his personnel assistant and his timekeeper, neither of whom witnessed the incident. Since the representatives introduced signed statements by the assistant supervisor and foreman, witnesses to the scenario, we must agree that the testimony is, in fact, hearsay, but Miller failed to object to the testimony. Hearsay admitted without objection is to be given its natural probative effect and may support a finding if it is corroborated by some competent evidence in the record. See Mendelson v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 398, 401, 402 A.2d 565, 566 (1979). We look to the record for further guidance:

Referee to Claimant:

QR: Okay, but the shakeout wasn't operating right?

AC: Right, it was off, but it wasn't broke down. Okay.

QR: Okay. How long was it going to be off?

AC: Well I would say like 15, 20 minutes maybe. (Emphasis added.)

Miller's admission, which is clearly competent evidence, combined with the hearsay, corroborates the referee's finding that the machine was not functioning when the employee was ordered and refused to clean the work area. Since Miller could not justify this refusal, his behavior constituted willful misconduct.

Affirmed.

Order

The decision of the Unemployment Compensation Board of Review, No. B-80-7-E-794, dated October 29, 1980, is affirmed.

[ 67 Pa. Commw. Page 106]

Judge Mencer did not participate in the decision in this case.

Disposition

Affirmed.


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