19 Pa. Commw. 38 | Pa. Commw. Ct. | 1975
Opinion by
This is an unemployment compensation case in which all the compensation authorities denied benefits to the claimant because they concluded that his unemployment was due to a discharge for willful misconduct, in violation of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802 (e).
The claimant, James A Stiles, was employed for seven years as an offset helper by Federal Paper Board Company. On September 13, 1973, he was discharged by his foreman for allegedly threatening his foreman with bodily harm.
Claimant seems to confuse the law concerning hearsay’s place in supporting findings and the law concerning the necessity of testimony in Board determinations. To truly understand the difference, we must first keep in mind the well-settled principle that in willful misconduct cases the burden of proof is placed upon the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A. 2d 165 (1973).
Claimant questions whether or not the Board erred as a matter of law in not requiring the testimony of the foreman. This question underscores the importance of the burden of proof in willful misconduct cases.
We have often noted that the Board is the trier of facts, and it is the Board’s responsibility to weigh the evidence and determine the facts of the case, which determination this Court cannot change or alter except for a manifest abuse of discretion. Peluso v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 250, 315 A.2d 340 (1974). Our duty then is limited to
There has long been a rule in this Commonwealth that a lack of necessary testimony in the record will prevent a finding of fact or conclusion of the Board that a claimant was discharged for willful misconduct. Lipshutz v. Unemployment Compensation Board of Review, 8 Pa. Commonwealth Ct. 257, 303 A. 2d 231 (1973); Feldman Unemployment Compensation Case, 186 Pa. Superior Ct. 452, 142 A. 2d 161 (1958).
Having resolved the application of the law to the facts in this case, we, in deciding upon the proper form of our order, are still confronted with what the Board termed the “perplexing problem” of what to do if the necessary witness or witnesses refuse to appear. In the instant case, the foreman never did appear, though he was given two opportunities to do so. During oral argument, the Board asked whether, when a necessary party refuses to testify, they must then in all cases find in favor of the claimant. We need not answer this question because clearly the Board has a remedy in these circumstances.
Section 506 of the Unemployment Compensation Law, 43 P.S. §826, provides:
“In the discharge of the duties imposed by this act, the secretary, the members of the board, any agent duly authorized in writing by the board, and any referee shall have power to administer oaths and affirmations, take depositions and certify to official acts. The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with a disputed claim-or the administration of this act. Such summons or subpoenas shall be signed by the secretary or the*44 chairman of the board, as the case may be, or some person duly authorized in writing by the secretary or the board. Witnesses subpoenaed pursuant to this act shall be allowed reasonable fees and expenses at a rate fixed by the department. Such fees and all expenses of proceedings involving disputed claims shall be deemed a part of the expense of administering this act and shall be paid from the Administration Fund.”
Several other sections of the Act provide a procedure for the application of this section.
For the foregoing reasons, we issue the following
Order
And Now, this 9th day of May, 1975, the appeal of James A. Stiles is sustained, and the order of the Unemployment Compensation Board of Review is hereby reversed and the record remanded for action by the Board not inconsistent with this opinion.
. This section provides in pertinent part:
“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 . . . .”
. If there had been sufficient competent evidence to support this allegation, there would be little doubt that, as a matter of law, this type of conduct could constitute willful misconduct. Wilson v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 314, 325 A. 2d 500 (1974).
. Claimant made no specific objection to the testimony of David Spry at the first hearing.
. The Board’s findings of fact disclose:
“2. Claimant was discharged by his foreman for threatening bodily harm to the foreman.
“3. Claimant had knowledge that this amounted to insubordination and, as such, was an offense which meant immediate discharge.”
., Other areas of the unemployment compensation law may place the burden on the claimant. For example, a claimant for
. For a case in which the testimony was not deemed necessitous, see Borlak v. Unemployment Compensation Board of Review, 15 Pa. Commonwealth Ct. 489, 326 A. 2d 659 (1974).
. See McAndrew Unemployment Compensation Case, 178 Pa. Superior Ct. 98, 113 A. 2d 157 (1955), which applied the rule to Section 402(b) (i.e., unemployment due to voluntarily leaving work without good cause).
. For application of the former, see Feldman, supra. For application of the latter, see Lipshutz, supra.
. For cases applying both the necessity and the hearsay rules, see Lipshutz, supra, and McAndrew, supra.
. See Sections 507 and 508, 43 P.S. §§827-28. The Act is rather thorough on this point and the Board should have no trouble applying it. In addition, the Bureau has already promulgated some regulations to deal with these situations. See 34 Pa. Code §§61.11-12.