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FARMLAND INDUSTRIES v. COMMONWEALTH PENNSYLVANIA (07/17/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 17, 1984.

FARMLAND INDUSTRIES, INC., 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 Glenda E. Harris, No. B-210055.

COUNSEL

Matthew J. Creme, Jr., Nikolaus, Hohenadel & Chesters, for petitioner.

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

Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr. concurs in result only.

Author: Blatt

[ 84 Pa. Commw. Page 58]

Farmland Industries, Inc. (employer) appeals here an order of the Unemployment Compensation Board of Review (Board) which granted unemployment compensation benefits to Glenda E. Harris (claimant).

[ 84 Pa. Commw. Page 59]

The findings of fact, as made by the referee and adopted by the Board, are as follows:

1. Claimant was last employed as a manager by Farmland Industries Inc. from October 6, 1980, at a final rate of pay of $5.02 per hour, and her last day of work was December 19, 1981.

2. In December 1981, employer turned over an amount of cash in excess of $2,000 in marked bills to an undercover State Policeman.

3. A portion of these funds were later uncovered in the coat pocket of a passenger in claimant's automobile.

4. Claimant was arrested for criminal conspiracy and stated that it was a dumb thing to do, "I'm sorry".

5. Claimant was suspended on December 21, 1981, and discharged a week later for allegedly conspiring with others to rob her employer's store.

The employer alleges in his brief that the claimant was involved in a criminal agreement to commit armed robbery at a convenience store which was owned by the employer, albeit not one that was managed by the claimant. He asserts that the State Police, while engaged in an undercover operation, agreed surreptitously with the claimant and others that a trooper would rob the store and then divide the money among the co-conspirators. Subsequently, without the knowledge of the other co-conspirators, the undercover state trooper acquired "marked" bills from the employer and, pretending that the robbery had actually occurred, met with the claimant and others to divide the money allegedly stolen from the employer's store. The employer states that, shortly thereafter the claimant was arrested and charged with criminal

[ 84 Pa. Commw. Page 60]

    conspiracy, and a search which was conducted at the time of the arrest revealed that an individual who was in the automobile with the claimant at the time of the arrest was in possession of a portion of the "marked" money. At the later hearing concerning the claimant's unemployment compensation benefits, however, the employer stated that the troopers involved in the above undercover operation had refused his request that they testify indicating that the refusal was because of a policy promulgated by the State Police which requires troopers to remain uninvolved in labor disputes.

The burden of proof, of course, is upon the employer to prove that a discharge of an employee was for willful misconduct. Hadvance v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 447, 442 A.2d 862 (1982). And, where the party with the burden of proof did not prevail below, our scope of review is limited to questions of law and a determination of whether or not competent evidence was capriciously disregarded. Cillo v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 445, 442 A.2d 858 (1982).

The employer here contends that the Board erred by failing to remand to the referee so that he could subpoena the undercover state troopers who had refused his request to testify.

We must note, however, that our own careful review of the record fails to disclose any evidence that the employer here made any attempt to acquire a subpoena pursuant to 34 Pa. Code § 101.31, which provides that:

The issuance of subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records and documents, may be obtained

[ 84 Pa. Commw. Page 61]

    amended, 43 P.S. § 802(e). Specifically, the employer asks us to modify our present rule of law concerning the treatment of hearsay testimony,*fn2 which is that unobjected-to hearsay will be given its natural probative effect and can support the Board's findings when it is corroborated by competent evidence. Bailey v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 293, 457 A.2d 147 (1983). We must decline to do so. To the contrary, our careful review of the record persuades us to agree with the conclusion of the Board and the referee that no competent testimony was presented on behalf of the employer to corroborate his hearsay testimony concerning the claimant's alleged involvement in a "conspiracy to commit theft", an "attempted theft", or a "theft" of her employer.

We have previously defined willful misconduct as a wilful and wanton disregard of the employer's interests, a deliberate violation of rules, a disregard of standards of behavior an employer can rightfully expect from an employee, or negligence manifesting culpability, wrongful intent, evil design or intentional substantial disregard of the employer's interests or the employer's duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90,

[ 84 Pa. Commw. Page 63309]

A.2d 165 (1973). In our thorough review of the record, however, we can not say that competent evidence existed here to support such a finding.*fn3

We will, therefore, affirm the order of the Board.

Order

And Now, this 17th day of July, 1984, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.

Judge Williams, Jr. concurs in result only.

Disposition

Affirmed.


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