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decided: November 30, 1982.


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.

Author: 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 corroborated by some competent evidence.*fn4

Thus, we must determine (1) whether the board could draw any inference from the claimant's silence and (2) whether such inference could be evidence which, together with the employer's letter, would constitute substantial evidence necessary to satisfy the employer's burden.

Pennsylvania has long held that, in a civil proceeding, a trier of fact is justified in inferring from the absence of a party's testimony that, had the testimony been honestly given, it would have been unfavorable to the party. Dommes v. Zuroski, 350 Pa. 206, 38 A.2d 73 (1944).*fn5

That inference, however, only goes to the credibility of the evidence introduced by the party with the burden of proof, and cannot supplement evidence which, standing alone, fails to amount to substantial evidence. This application of the adverse inference is explained in Schwegel v. Goldberg, 209 Pa. Superior Ct. 280, 284-285, 228 A.2d 405, 408 (1967), where the court said:

Although failure of the appellant to testify at the trial cannot supply negligence on his part because it must be shown affirmatively by the plaintiff, it does raise an inference of fact that the appellant's testimony would have been adverse

[ 70 Pa. Commw. Page 177]

    to him. Peters v. Shear, 351 Pa. 521, 41 A.2d 556 (1945). Thus, on the factual question of whether the child darted into the automobile or ran in front of it for sufficient time that the driver should have seen him and stopped, the jury was entitled to assume that appellant's testimony would not support a darting out. In other words, it may be inferred that the plaintiffs and their witnesses truthfully described the happening of the accident. Dommes v. Zuroski, 350 Pa. 206, 38 A.2d 73 (1944). From such description, as we have pointed out above, the elements of negligence could reasonably be inferred. (Emphasis added.)

Thus the inference created when a party refuses to testify is not considered evidence established by the party with the burden of proof, and therefore does not count in calculating whether a party has met its burden by introducing substantial evidence.*fn6 Rather, the

[ 70 Pa. Commw. Page 178]

    inference is directed to the credibility of the evidence presented by the party with the burden.

Hence, the mere hearsay explanation of the claimant's discharge did not constitute substantial evidence supporting the board's finding that the claimant violated the employer's rule.

Therefore, we conclude that, although the referee was entitled to draw an adverse inference from the claimant's silence, such inference could not be used as a substitute for the employer's failure to introduce substantial evidence. Accordingly, the decision of the board is reversed, and this case is remanded to the board for a computation of the appropriate benefits.


Now, November 30, 1982, the decision of the Unemployment Compensation Board of Review, No. B-195130, dated May 14, 1981, is reversed and remanded for computation of benefits to claimant Duane K. Harring.


Reversed and remanded.

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