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Bell Beverage v. Unemployment Compensation Board : of Review

July 26, 2012

BELL BEVERAGE, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD : OF REVIEW, RESPONDENT :



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: March 16, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE McCULLOUGH

Bell Beverage (Employer) petitions for review of the September 1, 2011, order of the Unemployment Compensation Board of Review (Board) reversing a referee's order denying unemployment compensation benefits to Carlos Falu (Claimant) under section 402(e) of the Unemployment Compensation Law (Law).*fn1 We vacate and remand the case to the Board for further findings of fact.

Claimant was employed in Employer's warehouse until November 3, 2010, when his employment was terminated for "theft and conspiracy." (Board's Findings of Fact, No. 10.) When the local service center denied his claim for benefits, Claimant appealed, and a hearing before a referee was scheduled for February 28, 2011. Steve Bell and Frank Bell, owners of Bell Beverage, testified on behalf of Employer. Clamant did not appear, later asserting that he had not received notice of the hearing.

At the hearing, Steve Bell testified that Employer retained a private investigator to follow its delivery trucks because inventory was missing. (Notes of Testimony (N.T.), 2/28/2011, at 3.) According to Steve Bell, after the investigator discovered that one of Employer's drivers, Ralph Puglia, and Puglia's helper were involved in the theft, Employer decided to put Claimant on the truck with Puglia to see if Claimant was also involved. (Id.)

Frank Bell testified that, on two separate occasions, the investigator observed Puglia unloading product into his home while Claimant was assigned to Puglia's truck. He further testified that on both occasions the investigator telephoned him as the theft was occurring. (N.T., 2/28/2011, at 3-4.) The first time, Frank Bell immediately telephoned Claimant on his cell phone, but Claimant did not answer. (Id.) When asked about it later, Claimant said he was sleeping on the truck. (Id.)

The second time, Claimant answered his phone and said that he and Puglia were on the expressway and would be back to the warehouse in a few minutes. (Id.) Employer also offered into evidence a letter from the private investigator, Michael Corsaro of Insight Investigations. In pertinent part, the letter reads as follows:

On the dates of 11/1, and 11/3, we observed a Bell [B]everage employee arrive at his given address accompanied by [Claimant] as the passenger. As the driver "Ralph Puglia" commenced in the act of removing beverages from the Bell [B]everage truck and carrying the items into his residence, we noted [Claimant] remain inside the vehicle. On 11/3 we called to inform you that your truck was again outside Ralph Puglia's residence and [Claimant] was in the truck while Ralph Puglia transferred stolen cases from the truck to his residence. While on the phone with you we heard you place a call to [Claimant] and ask "where are you[?]" [Claimant] stated "we just got off the highway and will be back to the warehouse in a few minutes." At no time did he state his exact physical location nor did he state the actions of Mr. Puglia.

(C.R. 2/28/2011 hearing exhibit E1.)

Corsaro was not present at the hearing to authenticate the letter; however, Claimant was not present to object, and the referee accepted the letter into evidence. Employer also attempted to offer DVD footage taken by Corsaro into evidence. The referee agreed to watch it, but when both witnesses indicated that Claimant was not visible anywhere in the DVD footage, the referee decided there was no need to view it. (N.T., 2/28/2011, at 5.)

In a decision dated March 1, 2011, the referee concluded that Claimant was fired for willful misconduct and, thus, was ineligible for benefits under section 402(e) of the Law. Claimant appealed to the Board, contending that he never received notice of the February 28, 2011, hearing.

Although Claimant was appealing on the basis that he had not been notified of the referee's February 28, 2011, hearing, the Board directed the referee to schedule another hearing for the sole purpose of allowing Employer to submit its DVD evidence.*fn2 At the remand hearing, Employer played a DVD containing three separate files of footage taken on October 29, 2010; November 1, 2010; and November 3, 2010. (N.T., 7/28/2011, at 5-7.) Frank Bell testified that the recordings were made by the private investigator and contained footage from the two above- described incidents. (Id. at 5-6.) Corsaro again was not present at the hearing to authenticate the DVD. Claimant, who was unrepresented, did not object to admission of the DVD evidence; however, he pointed out more than once that he did not see himself in the DVD.*fn3 (Id. at 5-7.)

Subsequent to the remand hearing, the Board made the following findings of fact:

1. The claimant was last employed doing warehouse work by Bell Beverage for approximately 10 years and his last day of work was November 3, 2010.

2. The claimant would also help the employer's drivers when they would make deliveries.

3. The employer hired a private investigator after it became aware that it was missing inventory.

4. The private investigator followed the employer's trucks during deliveries.

5. Beer was being transferred to a driver's residence.

6. During the last occasion, the private investigator contacted the employer and allegedly informed the employer that the truck was parked outside the driver's residence, and that the claimant was allegedly in the truck.

7. On November 3, 2010, the investigator called the employer to state that the driver was allegedly unloading product at his home. Around the same time that the investigator allegedly contacted the employer, the employer called the claimant's cell phone; he answered it, and stated that the driver and he were on their way back to the warehouse.

8. One of the employer's owners questioned the claimant after the second incident, and specifically asked the claimant if he was aware if any ...


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