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PHILADELPHIA ELECTRIC COMPANY v. COMMONWEALTH PENNSYLVANIA (11/13/89)

decided: November 13, 1989.

PHILADELPHIA ELECTRIC COMPANY, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from PETITION FOR REVIEW, (UNEMPLOYMENT COMPENSATION).

COUNSEL

Paul Auerbach, Philadelphia, for petitioner.

Maribeth Wilt-Seibert, Asst. Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Doyle and McGinley, JJ., and Narick, Senior Judge.

Author: Doyle

[ 129 Pa. Commw. Page 419]

Philadelphia Electric Company (Employer) has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision granting unemployment compensation benefits to Patrick A. Henry (Claimant).

Claimant was employed by Employer as a probationary computer and electronics assistant technician from September 14, 1987 until his termination on June 29, 1988. As a condition of permanent employment, Claimant was required to pass a physical examination, which included a urine test to detect the presence of drugs in his system. Claimant was discharged for failing this physical examination when

[ 129 Pa. Commw. Page 420]

    he tested positive for the presence of cannabinoids (marijuana).

Claimant applied for unemployment compensation benefits which were denied by the Office of Employment Security (OES) on the grounds of willful misconduct. Claimant appealed and a hearing was held before a referee at which Claimant and two Employer representatives appeared. Ms. Spedding, a licensed physician's assistant, testified for Employer regarding the medical records Employer maintained. Claimant's first physical examination was on June 22, 1987, prior to his employment. He tested positive for cannabinoids at that time and was informed that he could be retested. On August 14, 1987, Claimant returned, was retested and was found to be drug-free. He was then hired by Employer as a probationary employee on September 14, 1987. On June 1, 1988, Claimant again underwent a physical examination, in anticipation of permanent employment. Ms. Spedding testified that the results of this third drug test were positive and Claimant was terminated on June 29, 1988.

In response to the referee's questions, Ms. Spedding admitted that she was not the person who had performed the June 1, 1988 physical, although she explained Employer's standard procedures and safeguards for obtaining urine samples for testing. The samples obtained were sent to an independent laboratory, which then forwarded the results to Employer. Employer produced copies of the laboratory reports for the three tests Claimant had undergone and Claimant voiced his objection to admitting the results of the last test, i.e. the physical on June 1, 1988. The referee overruled the objection and admitted all three exhibits "for whatever probative value they may have." (N.T. p. 10).

Claimant, who was unrepresented at the hearing, admitted to smoking marijuana at a graduation party in June of 1987. He denied any drug usage after that.

Following the referee's hearing, in the opinion and order which he subsequently filed, the ...


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