91 Pa. Commw. 502 | Pa. Commw. Ct. | 1985
Opinion by
Albert Ford has filed a petition for review of an order of the Unemployment Compensation Board of
The petitioner was a wiper, that is, a person whose duty it was to remove dirt and grease from engines and engine rooms. He had worked only eighteen days for this employer when the events of this case occurred.
The petitioner testified that on the morning of February 3, 1984, the ship’s captain told him to clean the generator and fan rooms but he did not get to this work because he had to make the crew’s coffee. The ship’s captain made an inspection below decks and saw that the petitioner had failed to wipe down the generator and fan rooms. Later the same day, the ship docked in New Haven, Connecticut and the petitioner left ship. He filed a claim for compensation in which he reported to the Office of Employment 'Security that he had to quit his work or the captain would have fired him. His employer reported that he had quit. The OES, a referee after a hearing, and the Board of Review concluded that the petitioner had quit.
The petitioner successively testified as follows: He [the captain] told me, I didn’t do the fan room and the generator room . . . you’re fired.
Q. Alright [sic] so, did you quit or were you fired.
A. I quit.
Q. You did quit.
A. Yea he was going to tell me I was discharged anyway so I quit.
Q. You told him you were going to quit?
A. Yea I told him.
*504 Q. You told .the captain you were going to ■quit.
• A. Yea.
\ Q. Why did you tell him you were going to quit.
; A. He tell me to get off the ship.
The board found that the petitioner had been reprimanded and had voluntarily quit because he believed he was going to be discharged. It further found that he could have remained employed if he had not quit.
. The petitioner in an able brief states two questions. The first is that of whether the board’s finding that he voluntarily quit was supported only by uncorroborated hearsay evidence. The employer sent to the hearing a person who identified herself as a claims .representative. Neither party had counsel. The employer’s representative had with her a copy of a portion of the ship’s log which contained a notation that .the claimant had quit. The referee asked the claimant whether .he objected to the document being a part of •the record and he answered that he had no objection. The employer’s representative also produced a copy of a .telegram she sent to the ship asking the circumstances of the petitioner’s leaving the ship and a copy of the ship’s response that he had quit. These were admitted into evidence under the same circumstances as the log. The petitioner says that these documents are all hearsay and, that while the log might have been qualified as competent evidence under the Uniform Business Records as Evidence Act, 42 Pa. C. S. §6108, it was not identified or otherwise authenticated as required by 42 Pa. C. S. §6,108 (b).
The petitioner invokes the rule of Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976), that hearsay evidence admitted without obection will be given
We conclude that the employer’s unobjected to hearsay, evidence consisting of the ship’s log and an exchange of telegrams to the effect that the petitioner quit was corroborated first by the petitioner’s testimony. The petitioner gave shifting and inconsistent accounts of his last interview with the captain. He testified that the captain told him he was fired; that he quit because the captain told him he was going to be discharged anyway; and .that he quit because the captain told him to get off the ship. The board’s finding that the petitioner quit because he believed he was going to be fired is supported by the evidence. The board and the referee rejected .the petitioner’s testimony at one place that the captain simply fired him. This was not capricious disregard of the evidence because the petitioner at least twice said that he-quit. The petitioner did not testify, and the referee and the board did not find, that he was given the choice of quitting or being fired, as the cases require where an apparent quit is proposed to be treated as a
The finding that the petitioner quit is also corroborated by the employer’s claims representative’s testimony that under the employer’s procedures captains might fire members of the crew for acts endangering the vessels or people in the vessels; but for less serious offenses he should issue letters of warning.
Since we have concluded that we cannot decide the petitioner’s first question in his favor, it is unnecessary for us to discuss the second, that of whether the petitioner’s failure to wipe down the fan and generator rooms constituted willful misconduct.
Order
And Now, this 6th day of September, 1985, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
Philadelphia, Parent Child Center Inc. v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 452, 403 A.2d 1362 (1979) ; Unemployment Compensation Board of Review v. Simone, 24 Pa. Commonwealth Ct. 248, 355 A.2d 614 (1976).
The petitioner in written argument calls this testimony speculative. It was given in response to a question of the referee by a knowledgeable witness. We do not agree that it was speculative.