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JEAN L. BOLIVER v. COMMONWEALTH PENNSYLVANIA (03/12/87)

decided: March 12, 1987.

JEAN L. BOLIVER, 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 Jean L. Boliver, No. B-239275.

COUNSEL

Edith Benson, for petitioner.

Jonathan Zorach, Associate Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 104 Pa. Commw. Page 535]

Claimant Jean Boliver appeals from an order of the Unemployment Compensation Board of Review which determined that the claimant was ineligible to receive benefits because of willful misconduct under section 402(e) of the Unemployment Compensation Law,*fn1 reversing a referee's decision. We reverse.

According to the board's findings, the claimant worked for eleven years as a nurse's aide at St. Paul's Health Center, a nursing home for the elderly and infirm. An employee of the nursing home is subject to immediate discharge for abusive or inconsiderate treatment of a resident. On November 18, 1984, the claimant was abusive to a male stroke victim in that she "yanked" him out of his wheelchair and treated him roughly while dressing him. On November 26, 1984, the employer discharged the claimant for alleged abusive treatment of that resident.

Neither the alleged victim nor resident-witnesses testified before the referee. Instead, the employer's Director of Nursing offered into evidence various documents from the claimant's personnel file. Those documents consisted of incident reports which the claimant's supervisors had prepared after investigating instances where the claimant had difficulties with some of the patients. Included among those documents was a report which the board relied on, dated November 26, 1984, which the claimant's immediate supervisor had prepared after investigating a complaint regarding the claimant's alleged abusive treatment of a resident. Additionally,

[ 104 Pa. Commw. Page 536]

    the personnel file also contained documents indicating that the supervisory staff had warned the claimant regarding her increasingly negative attitude toward the patients.

The key issue is whether the board erred*fn2 in its reliance on documents in the claimant's personnel file which the referee had determined were hearsay and were not admissible evidence under section 6108 of the Uniform Business Records as Evidence Act, 42 Pa. C.S. ยง 6108.*fn3 If those documents are hearsay because they do not fall under the business record exception, we must then also determine whether there remains substantial evidence to support the board's findings. Additionally, the claimant asserts that the board erred by disregarding the referee's findings without stating its reasons for doing so. Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982).

In Treon, the Supreme Court held that the board may not simply disregard a referee's findings which are based upon consistent and uncontradicted testimony without ...


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