Washington v. Commonwealth

523 A.2d 1196, 105 Pa. Commw. 215, 1987 Pa. Commw. LEXIS 2060
Commonwealth Court of Pennsylvania·Decided April 8, 1987·No. Appeal, No. 2227 C.D. 1985·Published·Cited by 1 cases

Opinion

Opinion by

Judge Colins,

A replaying of a traditional conflict upon the high seas has led to the appeal presently before the Court. [217] Conrad Washington (petitioner) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed the referees decision finding him ineligible for unemployment compensation on account of willful misconduct.1

Petitioner was previously employed as a seaman (watchstander QMED2) at a rate of pay of Seventeen Hundred Dollars ($1700.00) per month on board the M.V. Chestnut Hill operated by Keystone Shipping (employer), when he was discharged for failing to report for watch in violation of the employers rules.

Clearly posted in the crews’ lounge and mess was a notice which read in pertinent part:

Members of the crew of this vessel may be discharged without notice for violation of any of the following rules:
11. Failure to report to duty except for causes beyond the control of the crew member.
13. Introduction, possession, or use of intoxicating liquors or habit-forming drugs, on the property of the Owner.

At the hearing before the referee, a copy of the notice was entered into evidence without objection after petitioner admitted having read the notice and being aware of its contents.

The ship’s log indicates that a letter of dismissal was prepared on January 12, 1985, and signed by the master of the vessel. This letter stated the following:

[218] TO: Mr. Conrad Washington
Letter of Discharge
Conrad Washington—QMED
SS KEYSTONE SHIPPING
You have been employed as watchstanding Q.M.E.D. from Dec. 19, 1984 to Jan. 13, 1985 and are being discharged for failure to report for watch at 2000 hrs. on Jan. 11, 1985.
You have failed to notify the launch service of your inability to return to vessel at proper time, so the vessel could be informed.
Prior to this, on Jan. 3, 1985, you admitted to the. Master to having a bottle of spirits in your room.
The Master warned you of the seriousness of this offense, and allowed you to dispose of the bottle without penalty.
Since both of your offenses are offenses listed in Form No. 312, which is posted for the benifit [sic] of all hands; no warning is required to prior of [sic] your discharge.

The ships log indicates that the petitioner, in addition to being terminated, was also fined Sixty-one Dollars and Eighty-eight Cents ($61.88), the overtime cost of his relief. On January 14, 1985, the contents of the letter were read to petitioner and he was placed off the ship when it arrived at its first domestic port in the United States.

Preliminarily, we must consider whether the discharge letter, prepared by the captain and witnessed by two members of the crew, was properly admitted into evidence over the hearsay objections of petitioners attorney. The discharge letter was brought to the hearing by RosaLee Bringhurst, the employers claim representative, whose testimony established that she was a prop[219] er custodian of documents. It is clear from the text of the letter that it was made in the regular course of business. The letter itself is a discharge of a seaman, reduced to writing, a requirement of both the management/labor contract and the law of the sea. The Uniform Business Records as Evidence Act (Act), 42 Pa. C. S. §6108(b), provides that:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

This document, prepared by the master of a vessel, and witnessed by David N. Benson, the vessel’s chief engineer, clearly has an indicium of reliability so as to justify its admission. See Wilkins v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 367, 502 A.2d 283 (1985).

Furthermore, the copies of the ship’s log were not objected to3 by petitioner’s attorney at the hearing. The log entry corroborates the contents of the létter as follows: “QMED Conrad J. Washington, F 168-44-0256 failed to return to the vessel for his regularly scheduled 2,000 — 2,400 watch. For this offense, Washington is fined $61.88, the Overtime cost of his reliefs.” (Dated [220] January 11, 1985). Ships’ logs have traditionally been held to have the highest degree of reliability and are admissible in judicial proceedings. See 5 Wigmore on Evidence §1641 (Chadbourn rev. ed. 1974).

Petitioner, while admitting possession of the contraband liquor, gave a strikingly different account of the entire incident. Petitioner testified that he was subject to harassment and unfair treatment at the hands of the Chief Mate, David R. Smith. Petitioner further testified that Mr. Smith had earlier threatened to “throw him in irons” and the petitioner stated that he was placed in genuine fear for his physical safety. Therefore, on December 27, 1984, he contacted the Vice Consul of the United States of America, located in Port of Spain, Trinidad, where the ship was temporarily docked, and requested that an investigation be conducted concerning his claim of harsh and barbarous treatment toward a seaman. In essence, it is petitioner’s contention that as of January 2, 1985, the petitioner has necessitous and compelling reasons to voluntarily terminate his employment with employer and, therefore, employer was under an obligation to transport him back to his home port.

In support of his contentions, petitioner submitted a document indicating that there was contact between the Vice Consul and petitioner.4

[221] Petitioner further contends that he was under no obligation to stand the watch, as he was merely being transported home, and that the ships log entries were incorrect.

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Washington v. Commonwealth, 523 A.2d 1196, 105 Pa. Commw. 215, 1987 Pa. Commw. LEXIS 2060 (Pa. Ct. App. 1987).

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