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RAYMOND HUDSON v. COMMONWEALTH PENNSYLVANIA (03/13/87)

decided: March 13, 1987.

RAYMOND HUDSON, 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 Raymond Hudson, Jr., No. B-233329.

COUNSEL

Andrew F. Erba, for petitioner.

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

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 104 Pa. Commw. Page 598]

Claimant Raymond Hudson appeals an order of the Unemployment Compensation Board of Review (Board) denying him benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Session, P.L. (1937) 2897, as amended, 43 P.S. § 802(e) (willful misconduct). We vacate and remand.

Claimant was employed as a drill operator for approximately ten years before his discharge on April 24, 1984. On that date, he was observed operating his machine with only one hand and was instructed to work with both hands. As found by the referee, "Claimant refused to operate his machine with two hands, became up-set [sic] and picked up a stool and tossed it on the floor, kicked the off button at the bottom of the machine and at the same time made threats of bodily harm."*fn1 He was discharged for insubordination and for violence, which were violations of employment rules.

Unemployment benefits were denied by the Office of Employment Security and, on appeal, the referee found that Claimant was discharged for willful misconduct

[ 104 Pa. Commw. Page 599]

    and therefore ineligible for benefits under Section 402(e). The Board affirmed the denial of benefits, and Claimant's petition for review of this order is now before our Court.

We reject Claimant's initial contention that the referee failed to assist him in presenting his case, as required by 34 Pa. Code § 101.21. Specifically, he argues that he should have been advised to object to hearsay evidence presented by the employer and that the referee was required to inform him that his own testimony could corroborate the employer's hearsay and that he could refuse to testify.

The record indicates that the referee satisfied the requirements of our decision in Katz v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 427, 430 A.2d 354 (1981), and advised Claimant of his right to counsel, to cross-examine adverse witnesses and to present witnesses in his own behalf. The referee is not required to advise a claimant on specific evidentiary questions or points of law, Rohrbach v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 172, 450 A.2d 323 (1982), and is not required to advise a claimant not to assist the employer in meeting its burden of proof by corroborating the employer's otherwise incompetent evidence. See Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 494 A.2d 1081 (1985).

We also reject Claimant's argument that his behavior did not rise to the level of willful misconduct. The employer bears the burden of proving willful misconduct, and if a violation of an employment rule is involved, the employer must prove both the existence of the rule and the fact of its violation. Albertson v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth ...


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