Myers v. Unemployment Compensation Board of Review

625 A.2d 622, 533 Pa. 373, 1993 Pa. LEXIS 105
CourtSupreme Court of Pennsylvania
DecidedMay 26, 1993
Docket49 W.D. Appeal Docket 1991
StatusPublished
Cited by56 cases

This text of 625 A.2d 622 (Myers v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 533 Pa. 373, 1993 Pa. LEXIS 105 (Pa. 1993).

Opinions

OPINION OF THE COURT

LARSEN, Justice.

Appellant Dennis E. Myers appeals from the order of the Commonwealth Court, which affirmed the order of the Unemployment Compensation Board of Review (Board), upholding the referee’s denial of benefits. The referee determined that appellant was discharged for willful misconduct and was not entitled to unemployment compensation benefits.

Pursuant to § 402(e) of the Unemployment Compensation Law:

An employe shall be ineligible for compensation for any week—
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is “employment” as defined in this act....

Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897 as amended, 43 P.S. § 802(e) (emphasis added). Thus, appellant herein is eligible for unemployment compensation benefits if his discharge was not due to willful misconduct. Because we find that appellant’s discharge was not due to his willful misconduct, we reverse.

From April 24, 1978 until September 6, 1989, appellant was employed by Yourga Trucking, Inc., as an over-the-road truck driver. In the six months prior to his discharge, appellant was involved in three accidents involving his employer’s tractor-trailer. These accidents resulted in damages in excess of $14,000 and in appellant’s discharge on September 6, 1989.

[376]*376Appellant applied for unemployment compensation benefits following his discharge, but the Pennsylvania Department of Labor and Industry Office of Employment Security determined that he was ineligible under § 402(e) of the Unemployment Compensation Law. Appellant appealed this determination to the referee. At the referee’s hearing, appellant and his employer Marion E. Doutt (employer) testified. In addition, the referee admitted into evidence the police reports of the three accidents. Based on the evidence, the referee determined that appellant’s negligence caused all three accidents, and that appellant failed to report the third accident to his employer, in violation of the employer’s rules. The referee concluded that: 1) appellant’s “continued negligence in operating his employer’s vehicle indicates an intentional disregard of the employer’s interests and a disregard of [appellant’s] duties and obligations to the employer,” 2) appellant’s conduct rose to the level of willful misconduct contemplated by § 402(e) and 3) appellant was ineligible for unemployment compensation benefits. Appellant appealed to the Unemployment Compensation Board of Review, which affirmed.

Appellant then appealed to the Commonwealth Court arguing that he did not commit willful misconduct and that the referee based her decision on objected to, uncorroborated hearsay. That court determined that, while the police reports were indeed hearsay, they were corroborated by both appellant’s and employer’s testimony, which in turn supported the referee’s findings of fact. That court also held that the admission of the hearsay evidence was not reversible error and affirmed the Board’s order.

Our scope of review in an appeal from an adjudication of the Board is such that we must affirm unless the adjudication violates the constitutional rights of the appellant, the adjudication is contrary to law, there is a violation of the Board’s procedure, or a finding of fact necessary to the decision is not supported by substantial evidence. Hoffman v. Unemployment Compensation Board of Review, 524 Pa. 470, 476-78, 574 A.2d 57, 60 (1990). Appellant contends that the evidence is not substantial to support the referee’s findings of [377]*377fact because the referee relied on incompetent hearsay evidence, i.e., the police reports and the employer’s testimony regarding the three accidents.

The Commonwealth Court found and the Board conceded that the police reports constituted objected to hearsay evidence. Nonetheless, that court concluded that the employer’s testimony regarding the accidents corroborated the hearsay police reports, and therefore, the police reports were to be given their natural probative effect and could support the referee’s findings. See Palmer v. Unemployment Compensation Board of Review, 68 Pa.Cmwlth. 388, 449 A.2d 126 (1982) and Perminter v. Unemployment Compensation Board of Review, 57 Pa.Cmwlth. 426, 426 A.2d 245 (1981).

The Commonwealth Court, however, ignored the fact that the employer’s testimony regarding the accidents was itself objected to hearsay evidence. The employer was not at the scene of any of the accidents and his testimony regarding the accidents was based on what others told him. “[Njothing is more adamantly established in American trial procedure than that no one may testify to what somebody else told him. He may only relate what is within the sphere of his own memory brought to him by the couriers of his own senses.” Johnson v. Peoples Cab Company, 386 Pa. 513, 515, 126 A.2d 720, 721 (1956). Because the employer had no first hand knowledge of any of the accidents, his testimony regarding the accidents was hearsay. Appellant recognized the hearsay nature of the employer’s testimony and objected to it (H.T., 2/2/90, p. 11).

It has long been established in this Commonwealth that hearsay evidence, properly objected to, is not competent evidence to support a finding of the Board, whether or not corroborated by other evidence. Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 527-28, 367 A.2d 366, 370 (1976).1 Therefore, the only competent evidence regarding the accidents was appellant’s testimony and handwritten notes, in which he described the events [378]*378leading to each accident. Our review of this evidence shows that appellant’s conduct was not willful misconduct.

This Court, in McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 620, 383 A.2d 533, 535 (1978) (quoting Moyer Unemployment Compensation Case, 177 Pa.Super. 72, 74, 110 A.2d 753, 754 (1955)), defined “willful misconduct” as:

... an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer’s interest or of the employe’s duties and obligations to the employer. (Emphasis omitted).

Thus, the Commonwealth Court has held that an employee’s negligence constitutes willful misconduct only if:

...

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Bluebook (online)
625 A.2d 622, 533 Pa. 373, 1993 Pa. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/myers-v-unemployment-compensation-board-of-review-pa-1993.