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WESTINGHOUSE ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (04/04/83)

decided: April 4, 1983.

WESTINGHOUSE ELECTRIC CORPORATION, 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 Mary Jones, No. B-178323.

COUNSEL

Richard B. Slosberg, Senior Labor Counsel, for petitioner.

Charles G. Hasson, Assistant Attorney General, with him Richard Wagner, Assistant Attorney General, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 73 Pa. Commw. Page 244]

In this unemployment compensation appeal, Westinghouse Electric Corporation, the employer, asks us to reverse a decision of the Unemployment Compensation Board of Review granting benefits to Mary Jones, the claimant. After an initial hearing before a referee, pursuant to which the referee denied benefits, the board, because the testimony recording had been erased, remanded the case for a rehearing to

[ 73 Pa. Commw. Page 245]

    create a new transcript, upon which the board alone made the final decision. Although the board might have elected to have the benefit of a referee's decision on that second round, the employer concedes that the board, as the prime factfinder, is not required to follow that course.

The precise issue before us is whether the board's conclusion, that the employer failed to meet its burden of establishing willful misconduct as a basis for discharging the claimant, resulted from a capricious disregard by the board of evidence offered on behalf of the employer, consisting of hearsay and certain inferences, in an attempt to prove that (1) part of the period of claimant's absence was not justified by illness, and (2) that the claimant had falsified a doctor's certificate concerning that absence, by altering dates.

The record confirms that the claimant was absent from work from April 30, 1979, throughout May, into the month of June. In response to the employer's May 15 request for an explanation, the claimant, on June 5, submitted a form in which she claimed illness beginning May 1. The physician's certificate portion of the form showed May 21 scratched through and replaced with May 1 as the beginning date of treatment, and May 21 scratched through and replaced with June 5 as the last date of treatment; the changes were made with a different color of ink than the original notations.

The board found, as a matter of fact, that the form had been changed, but also found that the doctor had refused to give additional information to the employer.

The doctor did not testify. The employer offered hearsay testimony consisting of an employer witness' report of a telephone ...


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