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CONRAD WASHINGTON v. COMMONWEALTH PENNSYLVANIA (04/08/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 8, 1987.

CONRAD WASHINGTON, 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 Conrad Washington, No. B-241795.

COUNSEL

Simon W. Tache, Simon W. Tache, P.C., for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 105 Pa. Commw. Page 216]

A replaying of a traditional conflict upon the high seas has led to the appeal presently before the Court.

[ 105 Pa. Commw. Page 217]

Conrad Washington (petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's decision finding him ineligible for unemployment compensation on account of willful misconduct.*fn1

Petitioner was previously employed as a seaman (watchstander QMED*fn2) at a rate of pay of Seventeen Hundred Dollars ($1700.00) per month on board the M.V. Chestnut Hill operated by Keystone Shipping (employer), when he was discharged for failing to report for watch in violation of the employer's rules.

Clearly posted in the crews' lounge and mess was a notice which read in pertinent part:

Members of the crew of this vessel may be discharged without notice for violation of any of the following rules:

11. Failure to report to duty except for causes beyond the control of the crew member.

13. Introduction, possession, or use of intoxicating liquors or habit-forming drugs, on the property of the Owner.

At the hearing before the referee, a copy of the notice was entered into evidence without objection after petitioner admitted having read the notice and being aware of its contents.

The ship's log indicates that a letter of dismissal was prepared on January 12, 1985, and signed by the master of the vessel. This letter stated the following:

[ 105 Pa. Commw. Page 218]

TO: Mr. Conrad Washington, Letter of Discharge, Conrad Washington -- QMED, SS KEYSTONE SHIPPING

You have been employed as watchstanding Q.M.E.D. from Dec. 19, 1984 to Jan. 13, 1985 and are being discharged for failure to report for watch at 2000 hrs. on Jan. 11, 1985.

You have failed to notify the launch service of your inability to return to vessel at proper time, so the vessel could be informed.

Prior to this, on Jan. 3, 1985, you admitted to the Master to having a bottle of spirits in your room.

The Master warned you of the seriousness of this offense, and allowed you to dispose of the bottle without penalty.

Since both of your offenses are offenses listed in Form No. 312, which is posted for the benifit [sic] of all hands; no warning is required to prior of [sic] your discharge.

The ship's log indicates that the petitioner, in addition to being terminated, was also fined Sixty-one Dollars and Eighty-eight Cents ($61.88), the overtime cost of his relief. On January 14, 1985, the contents of the letter were read to petitioner and he was placed off the ship when it arrived at its first domestic port in the United States.

Preliminarily, we must consider whether the discharge letter, prepared by the captain and witnessed by two members of the crew, was properly admitted into evidence over the hearsay objections of petitioner's attorney. The discharge letter was brought to the hearing by RosaLee Bringhurst, the employer's claim representative, whose testimony established that she was a proper

[ 105 Pa. Commw. Page 219]

    custodian of documents. It is clear from the text of the letter that it was made in the regular course of business. The letter itself is a discharge of a seaman, reduced to writing, a requirement of both the management/labor contract and the law of the sea. The Uniform Business Records as Evidence Act (Act), 42 Pa. C.S. § 6108(b), provides that:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

This document, prepared by the master of a vessel, and witnessed by David N. Benson, the vessel's chief engineer, clearly has an indicium of reliability so as to justify its admission. See Wilkins v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 367, 502 A.2d 283 (1985).

Furthermore, the copies of the ship's log were not objected to*fn3 by petitioner's attorney at the hearing. The log entry corroborates the contents of the letter as follows: "QMED Conrad J. Washington, F 168-44-0256 failed to return to the vessel for his regularly scheduled 2,000 -- 2,400 watch. For this offense, Washington is fined $61.88, the Overtime cost of his reliefs." (Dated

[ 105 Pa. Commw. Page 220]

January 11, 1985). Ships' logs have traditionally been held to have the highest degree of reliability and are admissible in judicial proceedings. See 5 Wigmore on Evidence § 1641 (Chadbourn rev. ed. 1974).

Petitioner, while admitting possession of the contraband liquor, gave a strikingly different account of the entire incident. Petitioner testified that he was subject to harassment and unfair treatment at the hands of the Chief Mate, David R. Smith. Petitioner further testified that Mr. Smith had earlier threatened to "throw him in irons" and the petitioner stated that he was placed in genuine fear for his physical safety. Therefore, on December 27, 1984, he contacted the Vice Consul of the United States of America, located in Port of Spain, Trinidad, where the ship was temporarily docked, and requested that an investigation be conducted concerning his claim of harsh and barbarous treatment toward a seaman. In essence, it is petitioner's contention that as of January 2, 1985, the petitioner has necessitous and compelling reasons to voluntarily terminate his employment with employer and, therefore, employer was under an obligation to transport him back to his home port.

In support of his contentions, petitioner submitted a document indicating that there was contact between the Vice Consul and petitioner.*fn4

[ 105 Pa. Commw. Page 221]

Petitioner further contends that he was under no obligation to stand the watch, as he was merely being transported home, and that the ship's log entries were incorrect.

We must note that the Board is the ultimate factfinder in appeals such as these, Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985), and that we must affirm the Board's decision unless there is an error of law or the Board has made findings of fact which are not supported by substantial evidence. See Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

The record indicates that the Board, in affirming the referee, made an independent review of the transcript

[ 105 Pa. Commw. Page 222]

    in this matter and prepared its own findings of fact and conclusions of law. In essence, the Board rejected most of petitioner's testimony and, instead, relied upon the events as recorded in the ship's log and the letter of termination. Questions of credibility, resolutions of conflicts in the evidence presented, and a determination of the weight to be given the evidence are matters for the Board to determine. Roach v. Unemployment Compensation Board of Review, 31 Pa. Commonwealth Ct. 424, 376 A.2d 314 (1977). The burden of proving that a termination was not voluntary rests upon the claimant. Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 170, 410 A.2d 422 (1980). The Board very explicitly found that the claimant did not voluntarily terminate his employment and, even if he did, he did not have necessitous and compelling cause to do so.

Our review of the record indicates that there is sufficient evidence to support the Board's conclusions and, therefore, we must affirm.

Order

And Now, this 8th day of April, 1987, the order of the Unemployment Compensation Board of Review, dated July 15, 1985, in the above-captioned matter, is hereby affirmed.

Disposition

Affirmed.


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