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JAMES KNISLEY v. COMMONWEALTH PENNSYLVANIA (12/17/85)

decided: December 17, 1985.

JAMES KNISLEY, 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 James Knisley, No. B-220548.

COUNSEL

Theodore W. Branin, for petitioner.

Daniel T. Booth, Legal Intern, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

Judge Colins, and Senior Judges Barbieri and Kalish, sitting as a panel of three. Opinion by Judge Colins. Judge Williams, Jr. did not participate in the decision in this case.

Author: Colins

[ 93 Pa. Commw. Page 520]

James Knisley, claimant, appeals the decision of the Unemployment Compensation Board of Review (Board), affirming the decision of the referee to deny him benefits under Section 402(e) of the Unemployment Compensation Law (Law)*fn1 concerning willful misconduct.

Claimant was employed as a truck driver by Overnite Transportation (employer). He worked for employer for almost six years. He was discharged in February, 1983, after taking a load to York, Pennsylvania, rather than to Bluefield, West Virginia, as stated on the manifest. Claimant stated that he never read the instructions (manifest) given to him, but that the dispatcher had told him to take the load "home" to York, Pennsylvania, where claimant lived.

The manager testified that the dispatcher had told him that he verbally directed the claimant to take the load to Bluefield. This was timely objected to by claimant's attorney as being improperly admitted hearsay. Later, the dispatcher himself testified via telephone that he had timely instructed claimant to take the load to Bluefield. Claimant's attorney objected to this testimony being taken by telephone. Employer also testified that claimant had been warned previously about following orders and that this time he was dismissed.

After his dismissal, claimant was denied benefits by the Office of Employment Security because his dismissal resulted from willful misconduct. He appealed and two hearings were held by the referee. The referee also denied benefits and the Board affirmed on appeal.

[ 93 Pa. Commw. Page 521]

Claimant bases his appeal on the grounds that the referee erred in accepting hearsay evidence over objections and basing some of her decisions on it, that the referee erred in denying claimant his right to have witnesses, and that claimant was denied due process through the bias or apparent bias of the referee.

The Board argues that the findings of the referee are supported by the evidence, that the misdelivery of the claimant constituted willful misconduct, that the referee conducted an unbiased hearing, and that claimant failed to follow the prescribed administrative remedy, thereby waiving his right to enforcement of the subpoena duces tecum.

Claimant's due process argument centers on his belief that two other drivers were present when the dispatcher allegedly directed him to take the load "home". He was only aware of their CB "handles" and did not know their true names. He requested the time sheets of the employer from that day, which he was given. He obtained their last names but was unable to persuade the employer to give him their ...


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