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TERESA D. WRIGHT v. COMMONWEALTH PENNSYLVANIA (09/23/83)

decided: September 23, 1983.

TERESA D. WRIGHT, 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 Teresa D. Wright, No. B-198398.

COUNSEL

James M. Bucci, for petitioner.

Richard F. Faux, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Doyle

[ 77 Pa. Commw. Page 279]

This is an appeal of an order of the Unemployment Compensation Board of Review (Board) which declared Teresa D. Wright (Claimant) ineligible to receive benefits because she was discharged from her employment for willful misconduct.

Claimant was employed by the American Medical Center as a housekeeper for approximately one and one-half years. Uncontroverted testimony at a hearing before a referee indicated that several weeks before Claimant's termination, a fellow employee accused

[ 77 Pa. Commw. Page 280]

    her of theft of an employee's personal property. The employer asked the local police to investigate. In a polygraph test administered by the police, Claimant stated that she did not steal the employee's money but had in fact taken trashbags from her employer. In a meeting with Claimant her supervisor confronted her with this information and she admitted taking the trashbags. The supervisor later testified before a referee that Claimant also admitted to taking toilet paper. The Board accepted the referee's finding of fact that Claimant took both the trashbags and toilet paper. The supervisor also testified that employees were permitted to use trashbags if they asked prior to taking them. As no permission was given for this taking, Claimant was discharged. This action was in conformance with a rule of the employer which stated that any employee who stole employer's property would be fired.

Claimant asserts three errors of the Board in finding her ineligible for benefits. First she states that the conduct which resulted in her termination was deminimus and not willful misconduct. She also states that all the evidence in support of her termination for willful misconduct is hearsay, properly objected to and, as such, cannot be the sole basis for a finding of willful misconduct. Finally, Claimant states that employer's use of the polygraph test was illegal and therefore inadmissible as evidence. Claimant's assertion of Board error regarding the illegal use of the polygraph and hearsay evidence is more easily dismissed than the issue of willful misconduct and shall be dealt with first.

A finding of willful misconduct in an unemployment case cannot be based solely on hearsay evidence. Orloski v. Unemployment Compensation Board of Review,

[ 77 Pa. Commw. Page 28152]

Pa. Commonwealth Ct. 254, 415 A.2d 720 (1980). Were the evidence of Claimant's willful misconduct based solely on hearsay and properly objected to, it would not be sufficient to support a finding. Ellis v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 628, 425 A.2d 496 (1981). The testimony here, however, was that of a representative of the employer who met with the Claimant and to whom the Claimant admitted taking her employer's property. As an admission of a party it fell within an exception to the hearsay rule and was therefore ...


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