Petrone v. UN. COMP. BD. OF REV.

557 A.2d 1118, 125 Pa. Commw. 127, 1989 Pa. Commw. LEXIS 269

• Court: Commonwealth Court of Pennsylvania
• Decided: April 13, 1989
• Docket: Appeal 2346 C.D. 1987
• Status: Published

Opinions

Opinion by

Judge Barry,

Julius A. Petrone (Claimant) petitions for our review of an order of the Unemployment Compensation Board of Review (Board) which reversed a decision of a referee and denied benefits under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., EL. (1937) 2897, as amended, 43 PS. §802(e) (willful misconduct).¹ We reverse.

The Claimant was last employed by the City of Philadelphia (Employer) as a police officer. He was suspended pending an investigation into his suspected illegal activity on the job and was subsequently discharged.

The Claimant applied for benefits which were denied by the Office of Employment Security (OES). The Claimant appealed to the referee who reversed the OES determination and granted benefits. The Employer appealed to the Board which denied benefits pursuant to Section 402(e) of the Law. The Claimant now petitions this Court for review of the Board’s order.

Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights were violated. Kirkwood v. Unemployment Compensation Board of Review, 106 Pa. Commonwealth Ct. 92, 525 A.2d 841 (1987).

In unemployment compensation proceedings, the employer bears the burden of proving willful misconduct. Williams v. Unemployment Compensation Board of Review, 109 Pa. Commonwealth Ct. 329, 531 A.2d 88 (1987). Whether the acts of a claimant constitute willful misconduct is a question of law subject to this Court’s review. Heins v. Unemployment Compensation Board of Review, 111 Pa. Commonwealth Ct. 604, 534 A.2d 592 (1987). We have defined willful misconduct as a wanton and willful disregard of an employers interests, a deliberate violation of an employers rules, a disregard of the standards of behavior which an employer can rightfully expect of an employee, or negligence manifesting culpability, wrongful intent, evil design or intentional and substantial disregard of an employers interests or an employees duties and obligations. Id.

The Claimant and a representative of the Employer appeared at the hearing before the referee. Both parties were represented by counsel. The hearing began with the admission, without objection, of the documents submitted to the referee by OES. Among the documents admitted was the Employers notice of intention to dismiss. The notice included, inter alia, a statement that on October 14, 1986, the Claimant was arrested and charged with thirty counts of bribery, thirty counts of obstruction of the administration of law, two counts of tampering with public records as well as unsworn falsification and false reports. The Employers counsel then began direct examination of the Claimant.

Following some preliminary questions and answers the Claimant refused to answer any further questions and asserted his Fifth Amendment privilege. At that point, the referee closed the hearing and directed the Employers counsel to submit his questions to the Claimant in writing. The record was held open pending the referees receipt of the questions and the Claimants response thereto. The Claimant also refused to answer the written questions. Upon receipt of the questions and responses the referee concluded that the Employer had not met its burden of proving willful misconduct and awarded benefits.

On appeal, the Board reversed the referees decision. It concluded that there “is uncontradicted testimony on the record that claimant was engaging in criminal activity while a member of the police force. We resolve the issue of credibility specifically in favor of the employer representative, and we find that the claimant’s conduct easily rises to the level of willful misconduct in connection with his work.” (Board Decision at 2.) After a careful review of the record we must conclude that the Board’s conclusion is not supported by substantial competent evidence on the record and must be reversed.

Contrary to the Board’s implication, the Employer’s representative did not testify at the hearing before the referee. The only testimony on the record was that presented by the Claimant. As noted above, the Claimant refused to answer all but the preliminary, introductory questions of the Employer’s counsel on direct examination. Although the law is clear that the Board is the final arbiter of credibility, E.T. Systems Corp. v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 230, 504 A.2d 992 (1986), given the fact that the Employer presented no testimony here, there was no credibility determination to be made.

Further, we cannot conclude, as the Board suggests, that the Claimant’s silence together with the contents of the notice of intention to dismiss constitutes substantial competent evidence to support its conclusion. There is no question that the notice constitutes hearsay evidence. Although it was admitted into evidence absent an objection by the Claimant, under this Court’s decision in Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976), the notice was admissible but cannot support a finding by the Board if it is not corroborated by some other competent evidence in the record. There is no such corroborating evidence in this record.

We recognize that in Caloric v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. , 452 A.2d 907 (1982), this Court held that the Board is entitled to draw negative inferences from a claimant’s exercise of his Fifth Amendment privilege. However, we cannot conclude that the negative inference the Board was entitled to draw from the Claimant’s silence in the case before us constitutes the competent corroborating evidence necessary for the hearsay notice to support a finding by the Board.

We find that this case is directly controlled by this Court’s decision in Harring v. Unemployment Compensation Board of Review, 70 Pa. Commonwealth Ct. 173, 452 A.2d 914 (1982).² In Harring, the evidence on the record to support a finding of willful misconduct amounted solely to hearsay evidence and a negative inference drawn from the claimant’s refusal to testify. Judge Craig wrote, “... although the referee was entitled to draw an adverse inference from the claimant’s silence, such inference could not be used as a substitute for the employer’s failure to introduce substantial evidence.” Id. at 178, 452 A.2d at 917. The facts in the case before us are indistinguishable from those in Harring. The only evidence on the record to support the Board’s findings are allegations contained in a hearsay document and a negative inference drawn from the Claimant’s failure to testify. We find that this does not amount to substantial competent evidence to support a finding of willful misconduct. Accordingly, we reverse the Board.

Order

NOW, April 13, 1989, the order of the Unemployment Compensation Board of Review at B-261025, dated September 9, 1987, is hereby reversed. '

Judge MacPhail did not participate in the decision in this case.

1 This case was reassigned to the author on February 17, 1989.

2 We note, as did Judge MacPhail in Highland Park Center v. Unemployment Compensation Board of Review, 94 Pa. Commonwealth Ct. 390, 503 A.2d 1037 (1986), that our decision in Harring was noted with disapproval by our Supreme Court in Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 494 A.2d 1081 (1985). Vann held that nothing in Harring should be construed to mean that a claimant in an unemployment compensation case had the right to remain silent. As in Highland, that issue is not involved in the case now before us.