Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Duane K. Harring, No. B-195130.
Thomas A. Bowlen, for petitioner.
Richard C. Lengler, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 70 Pa. Commw. Page 174]
Duane K. Harring, formerly an employee of R. Bruce Fike & Sons Dairy, Inc., appeals an order of the Unemployment Compensation Board of Review, which affirmed a referee's decision denying the claimant benefits under the willful misconduct section of the Unemployment Compensation Law.*fn1
[ 70 Pa. Commw. Page 175]
The employer dismissed the claimant, who had been with the employer as a driver-salesman for twenty-six years, on the ground that the claimant had violated the employer's policy prohibiting passengers from riding in company trucks during working hours.
The only evidence that arguably could support the referee's conclusion that the employer had met its burden of establishing willful misconduct*fn2 was: (1) the employer's letter to the Office of Employment Security (OES), explaining that the employer had discharged the claimant because the latter had violated the employer's rule against transporting unauthorized persons; (2) hearsay testimony from the employee's witness that another employee had observed the claimant with unauthorized riders in his truck; and (3) such inference, if any, which was created when the claimant, believing that the employer had failed to meet its burden, failed to testify at the hearing.
The claimant contends that the letter from the employer to the OES and the testimony that the claimant "was observed having riders in his truck" both constitute hearsay evidence, which standing alone do not support the referee's finding.*fn3 As a corollary, the claimant asserts that his silence at the hearing even in the face of allegations, does not supplement hearsay evidence which, standing alone, does not amount to "substantial evidence."
Although the claimant objected to the hearsay testimony, the disputed letter was admitted into evidence without objection. Therefore, under our rule in Walker v. Unemployment Compensation Board of Review,
[ 70 Pa. Commw. Page 17627]
Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976), the letter is admissible, but it cannot support a finding of the board unless it is ...