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BAUDILIO GARCIA v. COMMONWEALTH PENNSYLVANIA (10/14/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 14, 1982.

BAUDILIO GARCIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in cases of In Re: Claim of Baudilio Garcia, No. B-191473, and In Re: Claim of Baudilio Garcia, No. B-195824.

COUNSEL

David A. Scholl, for petitioner.

James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 69 Pa. Commw. Page 375]

Baudilio Garcia (claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) denying him benefits on the grounds that he had been discharged because of willful misconduct.*fn1

The record indicates that the claimant was discharged from his position as a truck helper/driver for the Bethlehem Steel Corp. (employer) in early December of 1979. He was subsequently reinstated by the employer after union intervention and he entered into an agreement with the employer wherein he was put on notice that any further acts of absenteeism or unfitness to work would result in his discharge.*fn2 On August 18, 1980, he failed to report to work and also failed to report such absence to his employer. He was then discharged.

Where, as here, the party with the burden of proof*fn3 has prevailed below, our scope of review is, of course, limited to questions of law and a determination as to whether or not the Board's findings are supported by substantial evidence. Jula v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 353, 409 A.2d 953 (1980).

The claimant's major contention is that the Board's decision upholding the referee's denial is not supported by substantial evidence in that the bulk of

[ 69 Pa. Commw. Page 376]

    the evidence was presented in the form of employer personnel records and are, as such, hearsay. The question of the applicability of the hearsay rule in unemployment cases has been answered by the guidelines set by this Court in Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976). There we analyzed the prior case law on this topic and enunciated two clear-cut rules, the appropriate rule for this case being that, where the hearsay is admitted without objection, this evidence is to 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. Id. Here it is clear that there is other competent evidence in the record, both from the testimony of the employer's representative and from the testimony of the claimant himself. Indeed, he has admitted in his Petition for Appeal to the Board of Review that he did not report off on the day in question. The Board's findings, therefore, are clearly supported by substantial evidence in the record.

Willful misconduct is not defined in the Law, but decisions of this Court have delineated its scope. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). We have also held that failure of the claimant to report his absence, as required by the employer's rules is willful misconduct. Donahue v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 139, 40 A.2d 251 (1979).

For all of the above-stated reasons,*fn4 the decision of the Board, denying benefits, is affirmed.

[ 69 Pa. Commw. Page 377]

Order

And Now, this 14th day of October, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned case is hereby affirmed.

Disposition

Affirmed.


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