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GARY C. BENNETT v. COMMONWEALTH PENNSYLVANIA (01/20/84)

decided: January 20, 1984.

GARY C. BENNETT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Gary C. Bennett, No. B-206412-B.

COUNSEL

Pamela Pershing, for petitioner.

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

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

Author: Macphail

[ 79 Pa. Commw. Page 626]

Gary C. Bennett (Claimant) appeals the decision of the Unemployment Compensation Board of Review (Board) reversing a referee's decision and denying benefits by reason of its determination that Claimant was discharged for willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law.*fn1

It appears from our review of the record of this case that the Office of Employment Security denied

[ 79 Pa. Commw. Page 627]

Claimant benefits based on a finding of willful misconduct. Claimant filed a timely appeal with the referee. The referee initially scheduled a hearing to be held on April 6, 1982. Employer requested a continuance because no one with firsthand testimony would be available until after April 11, 1982. The referee granted the continuance and rescheduled the hearing for April 12.

At the hearing, Claimant testified that he was employed as a unit manager of the Charlie Chan Restaurant (Employer). David Fowler, an area supervisor for Employer, who was not Claimant's immediate supervisor and who had no firsthand knowledge of the events, testified that he received a memo from Joe Gioiosa stating that Claimant had taken $40.00 out of the change fund at the restaurant for his personal use and that he was informed that Claimant had been discharged because of the missing money. Claimant, and Claimant's witness, testified that Claimant's immediate supervisor, Joe Gioiosa, had given Claimant permission to borrow this money due to Claimant's personal financial emergency. Claimant also testified that on another occasion he had received permission from Mr. Gioiosa to borrow money from this fund. Claimant admitted he was told by Mr. Fowler to replace the $40.00 or his failure to do so would be considered a violation of company policy. Claimant informed Fowler that he did not have the money to reimburse the fund at that time but planned to return the money out of his next pay or as soon as he could. Claimant testified that he was laid off, not fired.

Throughout the hearing, the referee properly confined Fowler's testimony to his own personal knowledge and disallowed Mr. Fowler's hearsay statements concerning the events which occurred between Claimant and Gioiosa. The referee stated in the course of the hearing that it was the Employer's responsibility

[ 79 Pa. Commw. Page 628]

    to send a person with firsthand knowledge to testify at ...


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