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IRV SCHNEIDER v. COMMONWEALTH PENNSYLVANIA (04/10/87)

decided: April 10, 1987.

IRV SCHNEIDER, 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 Irv Schneider, No. B-242851.

COUNSEL

Albert L. Becker, for petitioner.

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 Palladino.

Author: Palladino

[ 105 Pa. Commw. Page 239]

This is an appeal by Irv Schneider (petitioner) from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits to petitioner pursuant to Section 402(e) of the Pennsylvania Unemployment Compensation Law (Law).*fn1 For the reasons which follow, we affirm.

Petitioner was employed as a wood shop teacher by the Philadelphia School District. Through the complaint of a student's mother, School District authorities became aware that petitioner struck a student on the head with a chisel. As a result, the student sustained a head injury. On April 25, 1985, petitioner was discharged for violation of a School District policy against corporal punishment. Petitioner does not dispute that this incident occurred. He contends that this student and another member of the class were running around the shop passing his grade book back and forth. He contends that his actions were justified because he was trying to maintain order in the wood shop and that he merely tapped the student lightly.

Petitioner filed an application for unemployment compensation benefits with the Office of Employment Security (OES). OES denied benefits concluding that petitioner was discharged for willful misconduct in violation

[ 105 Pa. Commw. Page 240]

    of Section 402(e) of the Law. Petitioner appealed the OES determination to a referee. A hearing was held at which a representative of employer, petitioner and his attorney were present. The employer's witness, the student who was struck by petitioner, testified by telephone. The referee affirmed the OES decision, and petitioner appealed to the Board. The Board affirmed, and petitioner now appeals to this Court.

Our scope of review is limited to a determination of whether findings of fact are supported by substantial evidence, constitutional rights were violated or errors of law committed. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

On appeal, petitioner raises the following issues for our disposition: 1) was the testimony of employer's witness admissible where petitioner was without notice that this witness would testify over the telephone; and 2) whether the employer met its burden of establishing that petitioner's conduct was violative of its policy against corporal punishment where it did not introduce a copy of that policy.

Relying on Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 519, 501 A.2d 1180 (1985), petitioner asserts the student's testimony should be stricken. In Knisley this Court stated "we can no longer allow the Board to conduct telephonic hearings, over the objections of one of the litigants, without first having promulgated regulations which will safeguard the minimum due process rights of the parties and also ...


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