Appeal from the Order of the Unemployment Compensation Board of Review, in case of Richard D. Turzai, No. B-229853-B.
Ralph J. Ruggiero, for appellant.
Eileen S. Maunus, Assistant Chief Counsel, for respondent.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Concurring Opinion by Judge Colins.
[ 102 Pa. Commw. Page 646]
Richard D. Turzai (claimant) petitions for review*fn1 of an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision finding him ineligible for benefits on account of willful misconduct.*fn2
The claimant, an enforcement officer for the Pennsylvania Liquor Control Board (PLCB), was dismissed
[ 102 Pa. Commw. Page 647]
for allegedly disclosing the existence of an on-going undercover investigation to a liquor licensee who was the subject of the investigation. The claimant's dismissal was upheld by the Civil Service Commission (Commission), which decision was affirmed by this Court in Turzai v. Pennsylvania Liquor Control Board, 90 Pa. Commonwealth Ct. 374, 495 A.2d 639 (1985).*fn3
At the hearing before the unemployment compensation referee, the PLCB advised the referee that its two key witnesses, the licensee, a Mr. Stavo, and his employee to whom the claimant also allegedly revealed the investigation, had ignored properly served subpoenas*fn4 and would not be present to testify. After the claimant, appearing at this hearing pro se, objected to obtaining the testimony of these witnesses by telephone,*fn5 the referee admitted into evidence, under advisement and subject to the claimant's objection, the notes of testimony of the Commission hearing at which both of these witnesses testified. The referee stated that he would
[ 102 Pa. Commw. Page 648]
schedule another hearing if he subsequently determined that the Commission transcript was inadmissible. No decision, however, was rendered by this referee.
A second hearing was held by a different referee and the claimant denied disclosing confidential information to any unauthorized persons. The PLCB presented only a single witness who admitted that he had no first-hand knowledge of the alleged misconduct. The PLCB found itself once again unable to produce the licensee and his employee, although both had been again properly subpoenaed, and so the PLCB again proffered the notes of testimony of the Commission hearing. Over the objection of the claimant, now represented by counsel, the referee admitted the transcript and subsequently determined that the claimant was ineligible for compensation. The Board then reversed the referee's determination and awarded ...