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DANIEL SHERMAN v. COMMONWEALTH PENNSYLVANIA (03/16/88)

decided: March 16, 1988.

DANIEL SHERMAN, 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 Daniel G. Sherman, No. B-257136.

COUNSEL

Paul D. Welch, for petitioner.

Jonathan Zorach, 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

[ 114 Pa. Commw. Page 424]

Daniel Sherman (claimant) appeals an order of the Unemployment Compensation Board of Review

[ 114 Pa. Commw. Page 425]

(Board), affirming a referee's denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Act)*fn1 (willful misconduct).

Claimant was last employed by Champion Parts Rebuilders (employer). He was discharged from his employment on April 22, 1986 subsequent to being suspended for improper possession of company merchandise. Claimant worked for employer for approximately five (5) years and last received an hourly wage of $7.22.

Claimant's application for benefits was denied by the Office of Employment Security (OES). The claimant appealed the decision of the OES and a referee's hearing was held on June 5, 1986, with the employer testifying by telephone. Counsel for claimant timely objected to the taking of telephonic testimony on the basis of this Court's decision in Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 519, 501 A.2d 1180 (1985). However, the hearing was conducted by telephone and by decision and order of June 9, 1986, the referee affirmed the decision of OES denying benefits.

On appeal, the Board remanded the matter in order to give the employer an opportunity to present inperson testimony. However, the employer was not in attendance at this hearing which was held on August 26, 1986, because the referee ran behind schedule and the employer allegedly had an important meeting to attend. Based upon the fact that the employer requested a continuance by the submission of a handwritten note to an employee of the OES office, the Board again remanded the case for a second hearing. This hearing was held on November 4, 1986.

[ 114 Pa. Commw. Page 426]

At this second remand hearing, Don Bedard, the employer's plant manager, testified that he was provided with a copy of the transcript of the original telephonic hearing and that he had no additional testimony. The employer presented no further evidence concerning the circumstances surrounding the claimant's discharge at this hearing. The claimant renewed his objection to the use of any testimony elicited during the telephonic hearing as in violation of Knisley. Thereafter, on or about April 7, 1987, the Board issued a decision denying benefits. The ...


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