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HOWARD L. ROBINSON v. COMMONWEALTH PENNSYLVANIA (08/23/88)

decided: August 23, 1988.

HOWARD L. ROBINSON, 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 In Re: Claim of Howard L. Robinson, No. B-259634.

COUNSEL

J. Scott Leckie, Yablonski, Costello & Leckie, for petitioner.

Timothy Burke, Assistant City Solicitor, with him, D. R. Pellegrini, City Solicitor, for respondent, City of Pittsburgh.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Senior Judge Kalish.

Author: Doyle

[ 119 Pa. Commw. Page 135]

Howard L. Robinson (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which found him ineligible for benefits under Section 402(e) (willful misconduct) of the Unemployment Compensation Law (Law).*fn1 We vacate and remand.

Claimant was employed by the City of Pittsburgh (Employer) as the "co-driver" of a sanitation truck. A "co-driver" is the member of the sanitation truck crew who drives the vehicle when the principal driver is unavailable. On February 25, 1987, Claimant, while off duty, was involved in a serious motor vehicle accident. On that date, his pick-up truck struck and killed a pedestrian, and then struck a car. The accident was allegedly due to Claimant's operating his vehicle while under the influence of alcohol. A Pittsburgh television station broadcast news of the accident, and identified Claimant as a Pittsburgh sanitation worker. The Pittsburgh Post Gazette, a newspaper, also carried an article the following day about the accident in which it identified Claimant as the driver of a Pittsburgh sanitation truck. Claimant's involvement in the accident led to criminal charges being filed against him.

Claimant was initially suspended from his job on the ground that his involvement in the accident constituted conduct unbecoming a City of Pittsburgh employee. He was discharged by Employer on April 9, 1987 on the same basis.

Claimant filed for unemployment benefits with the Office of Employment Security (OES), which found him ineligible for benefits under both Section 402(e) and Section 3 of the Law, 43 P.S. ยง 752. Claimant appealed,

[ 119 Pa. Commw. Page 136]

    and after hearings before a referee, the referee found Claimant ineligible for benefits solely on the basis of Section 3. On appeal to the Board, the Board found that Claimant was properly disqualified under Section 402(e). This appeal followed.*fn2

Claimant's first argument is that the Board's findings of fact concerning the accident were unsupported by substantial evidence. Claimant asserts that the evidence presented by Employer to prove that Claimant had been involved in a serious vehicle accident while under the influence of alcohol, which consisted in the main of a police report, an alcohol influence report prepared by the police, and a newspaper clipping, was inadmissible hearsay. While these documents are hearsay, a witness for Employer testified that Claimant admitted at his civil service removal hearing that the facts contained in these documents were true [N.T. 12]. Since admissions by a party opponent are an exception to the hearsay rule, the Board could properly consider the reports and the article as substantive evidence under the circumstances. See Kilpatrick v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 201, 429 A.2d 133 (1981).

Next, Claimant contends that the Board erred in finding Claimant ineligible for benefits under Section 402(e), rather than analyzing Claimant's case under Section 3. We agree. Section 402(e) of the law states that an ...


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