Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Richard L. Emerich, No. B-197152.
Alfred C. Phillips, with him C. Grainger Bowman, McNees, Wallace & Nurick, for petitioner.
Gerald I. Roth, for claimant, Richard L. Emerich.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 70 Pa. Commw. Page 183]
Employer Caloric Corporation appeals an order of the Unemployment Compensation Board of Review, which held that claimant Richard L. Emerich, a former Caloric employee, was not disqualified from receiving benefits under Section 402(e) of the Unemployment
[ 70 Pa. Commw. Page 184]
Compensation Law,*fn1 which precludes payment of benefits to individuals terminated from employment for willful misconduct.
At the hearing before a referee, the employer's only witness, its director of personnel, testified that the claimant was fired for selling company products for personal gain.*fn2 To support this allegation, the employer offered in evidence four exhibits, which included copies of checks payable to the claimant and correspondence between the claimant and the California company to whom he allegedly sold the products.*fn3 The claimant's counsel objected to the admission of these exhibits on the ground that they were hearsay, but the referee permitted their introduction into the record, with the understanding that claimant's counsel had entered the proper objection.
The employer's witness then testified that the employer had fired the claimant after discovering the documents, although he acknowledged that he never had discussed these allegations with the claimant.
[ 70 Pa. Commw. Page 185]
Subsequently, the employer's counsel requested that the claimant be called as a witness, but the claimant's attorney advised the claimant to take the Fifth Amendment privilege against self-incrimination because of a pending FBI investigation into possible criminal activity by the claimant. After the claimant's refusal to testify, no further evidence was presented.
The board held that the employer did not meet its burden of establishing that the claimant had been discharged because of willful misconduct. See Boyer v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 191, 195, 415 A.2d 425, 428 (1980). The board considered the four exhibits to be hearsay and therefore found that there was no competent evidence in the record to support a finding of willful misconduct.
The employer challenges the decision, contending that the four exhibits, taken together with the fact of the claimant's exercise of his privilege against self-incrimination, constitute evidence that would support a finding of willful misconduct.
The claimant responds, saying that the exercise of the privilege does not constitute evidence, and that because the four exhibits are uncorroborated hearsay evidence to which an objection was properly made, the board's holding is correct under our decision in Walker v. Unemployment ...