R.D. Anderson v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert D. Anderson, :
Petitioner :
: No. 144 C.D. 2018
v. :
: Submitted: November 21, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 8, 2019
Robert D. Anderson (Claimant) petitions for review of the January 5,
2018 order of the Unemployment Compensation Board of Review (Board) affirming
a referee’s decision that found Claimant ineligible for unemployment compensation
(UC) benefits pursuant to section 402(e) of the Unemployment Compensation Law
(Law).1
1
Section 402(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §802(e). Section 402(e) provides that “an employe shall be ineligible for
compensation for any week . . . [i]n 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.” 43 P.S. §802(e).
Facts and Procedural History
Claimant worked as a full-time truck driver for the Zook Molasses
Company (Employer) from September 2014 until April 13, 2017. (Board Finding of
Fact (F.F.) No. 1.) Claimant was discharged on April 13, 2017 for violating federal
motor carrier hours-of-service rules and for falsifying his service hours. (F.F. No. 16;
Certified Record (C.R.) at Item No. 9, Notes of Testimony (N.T.), 6/29/17, at 3-4.)
Claimant applied for UC benefits and, on May 30, 2017, the local
service center found Claimant eligible for benefits. (C.R. at Item No. 4.) Employer
appealed and a referee conducted a hearing on June 29, 2017, at which two Employer
witnesses appeared and testified; however, Claimant did not appear at the referee
hearing. (C.R. at Item No. 9.) The referee denied UC benefits pursuant to section
402(e) of the Law. (Referee decision at 3.)
Thereafter, Claimant appealed arguing that he had not been afforded an
opportunity to appear at the referee hearing because he had requested a continuance
due to his sister being scheduled for surgery and believed that he had been granted a
continuance. (C.R. at Item No. 11.) The Board determined that a further hearing was
proper and remanded the matter to the referee, to serve as a hearing officer, in order
to receive testimony and evidence on Claimant’s reason for not appearing at the
hearing and for the parties to provide new or additional testimony on the merits.
(C.R. at Item No. 13.) On September 15, 2017, the referee conducted a remand
hearing at which Claimant and one other witness appeared and testified. (C.R. at
Item No. 15.)
After the remand hearing, the Board made the following findings of fact:
2
1. [Claimant] was last employed as a full-time driver for
Zook Molasses. He began employment on September
11, 2014 until April 13, 2017.
2. [Employer] is a fleet operator regulated by the Federal
Motor Carrier Safety Agency, and the agency
prescribes regulations which [Employer] is required to
abide with.
3. [Claimant] was suspended for three days for violating
the motor carrier regulations.
4. [Employer] requires its drivers to sign in when the
truck is moving so that his on-duty time is logged in.
5. [Employer]’s trucks also have a GPS attached to the
engine, [of] which the drivers were not aware.
6. On April 12, 2017, [Employer] assigned [Claimant] to
a driving route that was located approximately [one]
mile away.
7. [Claimant] did not return from his route until five hours
later.
9. On April 12, 2017, the [Employer]’s computer system
in [Employer]’s truck produced a GPS record.
10. The record showed a “stop work” of five hours that the
employer could not show accurate hours of service.
This resulted in an overage and an hour of service
violation.
11. In his final meeting with [Employer], [Claimant]
admitted that he would take [Employer]’s truck home
on the weekend without authorization.
12. [Claimant] would not log in the truck and [Claimant]
would use the truck for his personal business.
3
13. [Employer] only became aware of [Claimant]’s
conduct because the GPS indicated that the claimant
was moving the truck.
14. [Claimant] admitted that he used [Employer]’s truck to
go to his other job where he owns an egg company.
15. On days that [Claimant] did not communicate with
[Employer], [Employer] determined that [Claimant]
was in the area of his egg company.
16. [Claimant] was discharged for violating the hours-of-
service regulations and for falsifying his service hours.
In addition, [Claimant] was discharged for failing to
log in while operating the truck.
17. [Claimant] did not appear for the first hearing that was
scheduled by telephone.
18. [Claimant] requested a continuance of the hearing
because his sister was scheduled for surgery related to a
cancer diagnosis.
19. [Claimant] had communication with the [r]eferee office
and believed his request for a continuance was granted.
20. [Claimant] did not see the [r]eferee’s response because
he was in the hospital with his sister.
(F.F. Nos. 1-25.)
Based on its findings, the Board determined that Claimant had proper
cause for not appearing at the June 29, 2017 hearing. (Board decision at 3.)
Therefore, the Board considered the testimony and evidence from both hearings in
rendering its decision. Id. Reviewing the testimony from the two hearings, the Board
made the following credibility determinations:
Here, the Board credits [Employer]’s testimony that
[Claimant] was violating his hours of service and that he
4
falsified his hours of service by not logging in while
operating [Employer]’s truck after repeated warnings. The
Board rejects [Claimant]’s testimony and his witness’s
testimony that [Employer] encouraged him to work over his
hours and that he was never warned for his behavior. In
addition, the Board discredits [Claimant]’s testimony that
he only drove [Employer]’s truck without logging in when
he received permission from [Employer]. Finally, the
Board rejects [Claimant]’s reasons for why he did not return
for five hours on April 12, 2017, and that he was in
communicating (sic) with [Employer]. Based on the
Board’s credibility determination, [Claimant] did not have
good cause for his behavior and, thus, his behavior fell
below the standards of behavior [Employer] had a right to
expect.
Id. Consequently, the Board concluded that Claimant was ineligible for benefits
under section 402(e) of the Law. Id.
Claimant now petitions this Court for review of the Board’s order,2
arguing that (1) there is not substantial evidence to support a finding of willful
misconduct; (2) the Board’s findings of fact that Claimant knowingly took
Employer’s truck to use for an egg company he owns and failed to communicate with
Employer are not supported by substantial evidence; and (3) Employer introduced
inadmissible hearsay at the June 29, 2017 hearing, which was unfairly prejudicial to
Claimant.
2
Our review of the Board’s decision “is limited to determining whether the necessary
findings of fact were supported by substantial evidence, whether errors of law were committed, or
whether constitutional rights were violated.” Johns v. Unemployment Compensation Board of
Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
5
Discussion
Initially, we note that section 402(e) of the Law provides that an
employee shall be ineligible for UC benefits for any week in which his
unemployment is due to willful misconduct connected to his work. 43 P.S. §802(e).
Willful misconduct is defined as (1) wanton and willful disregard of an employer’s
interests; (2) deliberate violation of an employer’s rules; (3) disregard of the
standards of behavior that an employer can rightfully expect from an employee; or (4)
negligence showing an intentional disregard of the employer’s interest or the
employee’s duties and obligations. Grieb v. Unemployment Compensation Board of
Review, 827 A.2d 422, 425 (Pa. 2003). Whether a claimant’s conduct constitutes
willful misconduct is a question of law fully reviewable by this Court on appeal.
Temple University of the Commonwealth System of Higher Education v.
Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001). If
an employer alleges misconduct because of a claimant’s violation of a work rule, the
employer must prove the existence of the rule and its violation, and the burden then
shifts to the claimant to show good cause for his actions. McKeesport Hospital v.
Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth.
1993).
Claimant first argues that the record lacks substantial evidence to
support a willful misconduct finding. Claimant maintains that he did not
intentionally disregard the Employer’s interests and was merely seeking to further
Employer’s interests. Claimant contends that he had permission to drive Employer’s
truck home in order to perform routine maintenance on the truck. Claimant further
argues that he was justified in not communicating with Employer. He claims that his
Employer-provided headset was broken, that he could not hear his phone over the
noise of the truck, and/or was not permitted to use his phone while driving the truck.
Additionally, Claimant asserts that although he worked beyond his service hours on
6
occasion, it was done at Employer’s request and that, therefore, he did not engage in
willful misconduct. Finally, Claimant alleges he had good cause to work beyond his
service hours because on one occasion an injury in his knee flared up, he was not able
to drive, and had to remain in place for several hours.
In UC cases, the Board’s findings of fact must be supported by
“[s]ubstantial evidence [which] is defined as ‘such relevant evidence which a
reasonable mind would accept as adequate to support a conclusion.’” Western &
Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913
A.2d 331, 335 (Pa. Cmwlth. 2006) (quoting Guthrie v. Unemployment Compensation
Board of Review, 738 A.2d 518, 521 (Pa. Cmwlth. 1999)). “The Board’s findings are
conclusive on appeal so long as the record, when viewed in its entirety, contains
substantial evidence to support the findings.” Western & Southern Life Insurance
Co., 913 A.2d at 335. This Court is bound “to examine the testimony in the light
most favorable to the party in whose favor the Board has found, giving that party the
benefit of all inferences that can logically and reasonably be drawn from the
testimony” to determine if substantial evidence exists for the Board’s findings.
United States Banknote Co. v. Unemployment Compensation Board of Review, 575
A.2d 673, 674 (Pa. Cmwlth. 1990). Moreover, “even if there is contrary evidence of
record, the Board’s findings of fact are binding upon the Court where supported by
substantial evidence.” Borough of Coaldale v. Unemployment Compensation Board
of Review, 745 A.2d 728, 731 (Pa. Cmwlth. 2000). It is irrelevant whether the record
contains evidence to support findings other than those made by the Board in its role
as fact-finder; the critical inquiry is whether evidence of record exists supporting the
findings that were actually made. Ductmate Industries, Inc. v. Unemployment
Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008).
Further, in UC cases, “it is well-settled that the Board is the ultimate fact
finder and is, therefore, entitled to make its own determinations as to witness
7
credibility and evidentiary weight.” Serrano v. Unemployment Compensation Board
of Review, 149 A.3d 435, 439 (Pa. Cmwlth. 2016) (citing Peak v. Unemployment
Compensation Board of Review, 501 A.2d 1383, 1388 (Pa. Cmwlth. 1985)). “The
Board is also empowered to resolve conflicts in the evidence.” Serrano, 149 A.3d at
439. ‘“Questions of credibility and the resolution of evidentiary conflicts are within
the sound discretion of the Board, and are not subject to re-evaluation on judicial
review.”’ Id. (quoting Peak, 501 A.2d at 1388). “The Board is the arbiter of
credibility and is free to accept or reject the testimony of any witness in whole or in
part.” Ackley v. Unemployment Compensation Board of Review, 166 A.3d 565, 568
(Pa. Cmwlth. 2017). Moreover, “[t]his Court’s review of a decision by the Board
does not permit it to reweigh the evidence or substitute its own findings for those
made by the Board.” Chartiers Community Mental Health and Retardation Center v.
Unemployment Compensation Board of Review, 134 A.3d 1165, 1172-73 (Pa.
Cmwlth. 2016).
Here, Claimant’s argument is nothing more than an attempt to have this
Court accept his version of the facts, instead of those found by the Board. After a
review of the record, we conclude that there is substantial evidence to support the
Board’s determination that Claimant engaged in willful misconduct by violating
hours-of-service regulations and for falsifying his service hours.
At the June 29, 2017 referee hearing, Employer’s Human Resources
Director, Jamie Gould, testified that Claimant was discharged for violating federal
motor carrier hours-of-service rules and for falsification of hours-of-service. (N.T.,
6/29/17, at 3-4.) Employer’s Director of Transportation and Fleet Safety, Floyd
Ridenour, testified that all commercial driver’s license regulated drivers have to abide
by the federal motor carrier hours-of-service rules, because they are the law, and that
falsification of hours-of-service is one of the worst ways to break the law. Id. He
also testified that one incident of falsification can be grounds for termination. (N.T.,
8
6/29/17, at 4.) Ridenour explained that he had previously talked to Claimant about
the hours-of-service rules and that, prior to termination, Claimant received a written
warning and three-day suspension for hours-of-service violations. (N.T., 6/29/17, at
4-5.)
Ridenour testified that the final incident that led to Claimant’s discharge
occurred on April 12, 2017. (N.T., 6/29/17, at 5.) Ridenour stated that both the
truck’s onboard computer log and a GPS device attached to the truck’s engine record
the truck’s location. Id. Whenever drivers operate trucks, they are required to log
into the onboard computer in order to record their hours-of-service. (N.T., 6/29/17, at
5-7.)3 However, Ridenour testified that on the day in question, there was a five-hour
period of time when Claimant did not log into the onboard computer. (N.T., 6/29/17,
at 5-6.) Ridenour also stated that although Claimant was assigned a route that day,
which was located only 1.25 miles from Employer’s site, Claimant “did not return for
five hours” and “did not communicate with” Employer during that time period.
(N.T., 6/29/17, at 6.) Drivers are legally only permitted to work 14 hours-of-service
per day, including 11 hours of driving time, and are required to take a 30-minute
hours-of-service break each day. Id. Because Claimant did not log into the
computer, Employer was unsure if he was complying with the hours-of-service or
hours-of-service break requirements. Id. Specifically, Ridenour stated,
So with [Claimant] taking five hours of overage we will call
it and not communicating to us at all, we don’t know, we
didn’t know if he was okay or not okay, or violating the law
or not violating the law and he took a 30-minute break
without logging. He didn’t log it in the need to see it log as
a 30-minute regulation break and it wasn’t done so . . . this
Claimant also testified that he was required to log into the truck’s onboard computer
3
whenever he was driving. (C.R. at Item No. 15, N.T., 9/15/17, at 16-17.)
9
is on the tail end of multiple other days in a row of, of
severe violations of, of up to the 14-hour rule also.
(N.T., 6/29/17, at 6.) Ridenour additionally testified that there were instances when
Claimant took Employer’s truck home on weekends, but did not sign into the onboard
computer. (N.T., 6/29/17, at 7.)
Ridenour stated that because Claimant had driven the truck without
logging in, he effectively falsified his hours and, therefore, was terminated. (N.T.,
6/29/17, at 8.) In particular, Ridenour explained that Claimant’s “failure to log in
while operating the truck” was a falsification because “[h]e was driving the truck,”
but “chose not to say he was driving the truck.” (N.T., 6/29/17, at 7.) Ridenour
testified that Employer terminates anyone who drives outside the hours-of-service or
falsifies hours-of-service. Id.Based on the foregoing testimony, we conclude that substantial evidence
supports the Board’s findings that Claimant violated hours-of-service regulations and
falsified his hours-of-service. (F.F. Nos. 10, 12, 16.) Employer’s witnesses testified
that Claimant was aware that he was required to log into his truck’s onboard
computer whenever he drove it or took his mandatory break, but that on multiple
occasions, Claimant failed to do so. Employer’s witnesses also testified that
Claimant did not log into his truck’s computer when he took it home on the weekend,
and that on April 12, 2017, did not log into the computer during a five-hour period.
Employer’s witnesses testified that they could not determine whether Claimant was in
compliance with federal regulations when he did not log in, and that Claimant had
falsified his hours-of-service by operating his truck without logging in. When
examining the testimony in the light most favorable to Employer, as we must because
the Board found in its favor, there is undoubtedly substantial evidence to support the
Board’s findings.
10
While Claimant argues that he had good cause for his conduct because
he was given permission to take the truck home over the weekend, this is irrelevant
given that the Board did not find that Claimant was terminated for taking the truck
home, but instead, found that Claimant used Employer’s truck for personal business,
without logging in, thereby falsifying his service hour records. Claimant also argues
that he had good cause for not communicating with Employer due to a broken headset
and other reasons. However, this claim is similarly irrelevant because Claimant was
not terminated for a general lack of communication, but instead, for falsifying and not
complying with hours-of-service requirements. Finally, Claimant claims that
Employer had requested that he work beyond his maximum service hours on a
number of occasions and that he did not return to Employer’s site for five hours on
April 12, 2017, because he was having a flare-up of knee pain. However, the Board
specifically dismissed both arguments, stating that it rejected “[C]laimant’s testimony
and his witness’s testimony that the employer encouraged him to work over his
hours,” and rejected “[C]laimant’s reasons for why he did not return for five hours on
April 12, 2017.” (Board decision at 3.) As the arbiter of credibility, the Board was
free to accept or reject the testimony of the witnesses in whole or in part and, on
appeal, we may not disturb such determinations. Thus, because the Board did not
credit Claimant’s excuses for not complying with the hour-of-service rules, Claimant
did not have good cause for violating the same.
Moreover, we have previously held that a claimant truck driver commits
willful misconduct where he knowingly violates hours-of-service rules. Jackson v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 2011 C.D. 2013,
filed June 12, 2014), slip op. at 6;4 Dorman v. Unemployment Compensation Board of
4
Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a)
11
Review (Pa. Cmwlth, No. 1047 C.D. 2012, filed June 24, 2013), slip op. at 5. Thus,
the Board’s findings support its legal determination that Claimant committed willful
misconduct by “violating his hours of service and by falsifying his hours of service
by not logging in while operating [Employer’s] truck after repeated warnings.”
(Board decision at 3.)
Next, Claimant argues that there is not substantial evidence in the record
to support the Board’s findings that Claimant took Employer’s truck without
permission to work for an egg company that Claimant allegedly owns and that
Claimant failed to communicate with Employer. While Claimant raised this issue in
the statement of questions involved section of his brief, he waived the issue by failing
to address or develop it in the argument section of his brief. See Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to be
argued; and shall have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein, followed by such
discussion and citation of authorities as are deemed pertinent.”); Pennsylvania
Gaming Control Board v. Unemployment Compensation Board of Review, 47 A.3d
1262, 1265 (Pa. Cmwlth. 2012) (concluding that failure to develop an issue in a brief
will result in waiver); Watkins v. Unemployment Compensation Board of Review, 689
A.2d 1019, 1022 (Pa. Cmwlth. 1997) (concluding that arguments not properly
presented in the argument portion of a brief in support of the issue raised in the
statement of questions involved are waived).
Yet, even if Claimant had preserved this issue, he would not prevail. At
the June 29, 2017 hearing, Ridenour stated that Claimant admitted at his termination
meeting that he borrowed Employer’s truck without authorization in order to work for
an egg company. (N.T., 6/29/17, at 7.) Ridenour also testified that on April 12,
2017, Claimant did not communicate with Employer during the five-hour period
when he was assigned a route only 1.25 miles from Employer’s site. (N.T., 6/29/17,
12
at 6.) Thus, there is substantial evidence that Claimant took Employer’s truck
without authorization and did not communicate with Employer. However, regardless
of whether there is substantial evidence for these particular findings of fact, they are
ultimately irrelevant because the Board did not find that Claimant was terminated for
these reasons, but rather, that Claimant was terminated for violating hours-of-service
regulations by not logging into his onboard computer while driving Employer’s
truck.5
Finally, Claimant argues that Employer introduced inadmissible hearsay
at the first hearing, which was unfairly prejudicial to him. According to Claimant,
this hearsay undoubtedly influenced the Board’s determination. Claimant contends
that the prejudicial effect of allowing such hearsay on the record was not resolved by
giving him an opportunity to testify at the September 15, 2017 hearing because the
hearsay remained on the record and he was not given an opportunity to address the
hearsay. Claimant appears to want this Court to consider the nature of the supposed
“unsubstantiated hearsay” in the record and afford him “equitable” relief by
reweighing the evidence in his favor. (Claimant’s brief at 27-28.)
Claimant, however, failed to raise this hearsay issue in the statement of
questions involved section of his brief. Pennsylvania Rule of Appellate Procedure
2116 provides that “no question will be considered unless it is stated in the statement
of questions involved or is fairly suggested therein.” Pa.R.A.P. 2116. Where an
issue is not raised in the statement of questions involved, it is waived. Mazur v.
5
It would appear that Claimant owns his own tractor trailer, but not his own egg company,
(N.T., 6/29/17 at 7), as found by the Board in Findings of Fact 14 and 15, see F.F. Nos. 14-15.
However, these mistakes are irrelevant because the Board did not find that Claimant was terminated
because he used Employer’s truck for his own egg company. See Sturpe v. Unemployment
Compensation Board of Review, 823 A.2d 239, 242 (Pa. Cmwlth. 2003) (holding that errors are
harmless if they have no effect on the outcome of the case); Hussey Copper Ltd. v. Unemployment
Compensation Board of Review, 718 A.2d 894, 899 (Pa. Cmwlth. 1998) (same).
13
Unemployment Compensation Board of Review, 193 A.3d 1132, 1137 (Pa. Cmwlth.
2018); Oliver v. Unemployment Compensation Board of Review, 5 A.3d 432, 440 (Pa.
Cmwlth. 2010); Leone v. Unemployment Compensation Board of Review, 885 A.2d
76, 80-81 (Pa. Cmwlth. 2005). Here, in the statement of questions involved section
of his brief, Claimant only raised substantial evidence challenges to factual findings
made by the Board but did not raise any hearsay issue; therefore he has waived the
issue.
Assuming arguendo that Claimant had preserved this issue, his argument
would still fail. Claimant maintains that two documents introduced into the record at
the June 29, 2017 referee hearing contained inadmissible hearsay. Claimant appears
to be referring to two documents that were introduced as exhibits at the June 29, 2017
hearing.
The first document discussed by Claimant is the first page of Employer
Exhibit No. 2, a text message that Ridenour allegedly received from Claimant (Text
Message). (N.T., 6/29/17, at 9; Employer Ex. No. 2.) At the hearing, Ridenour
testified that Claimant sent the Text Message, in which Claimant alleged that he was
unable to communicate because satellites were falling out of the sky. Id. The second
document discussed by Claimant also appears to be part of Employer Exhibit No. 2,
which is a letter from Claimant’s supervisor in which he supposedly discussed the
reasons for Claimant’s discharge (Letter). Id. While Claimant assails the Board and
referee for permitting the introduction of the Letter, he then inconsistently argues that
it supports his position by supposedly demonstrating that Employer gave him
permission to take his work truck home with him.
It is well established that “hearsay evidence, [p]roperly objected to, is
not competent evidence to support a finding of the Board,” but that “[h]earsay
evidence, [a]dmitted without objection, will be given its natural probative effect and
may support a finding of the Board, [i]f it is corroborated by any competent evidence
14
in the record, but a finding of fact based [s]olely on hearsay will not stand.” Walker
v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth.
1976). However, where the Board errs in admitting hearsay testimony, the error is
harmless if other competent evidence, standing alone, exists in the record to support
the Board’s findings. See Nabisco, Inc. v. Workmen’s Compensation Appeal Board
(Cummings), 651 A.2d 716, 718-19 (Pa. Cmwlth. 1994); Pfanders v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 264 C.D. 2009, filed November
16, 2009), slip op. at 12; see also Rankin v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 883 C.D. 2009, filed January 22, 2010), slip op. at 8-9
(holding that even though hearsay evidence was admitted in error, such error was
harmless because the Board did not rely on it to render its decision).
Here, although Claimant did not object to the introduction of any
evidence at the June 29, 2017 hearing, because he was not present, at the September
15, 2017 remand hearing his counsel lodged a hearsay objection to the Letter. (C.R.
at Item No. 15, N.T., 9/15/17, at 2.) The referee noted that the objection would be on
the record for the Board to consider. (N.T., 9/15/17, at 3.)
There is absolutely no indication that the Board relied on, or even
considered, Employer Exhibit No. 2 in rendering its decision. In its decision, the
Board stated that it reviewed the testimony of both Claimant and Employer and found
Employer’s witnesses more credible. (Board decision at 3.) The Board did not
mention Employer Exhibit No. 2 and, as discussed in the preceding section, the
testimony of Employer’s witnesses provides substantial evidence that Claimant failed
to log in to his truck’s computer, violated hours-of-service regulations, and falsified
15
his hours-of-service. Thus, the Board’s findings of fact were not based on hearsay
evidence.6, 7
Conclusion
Accordingly, because there is substantial evidence to support the
Board’s determination that Claimant engaged in willful misconduct by knowingly
violating hours-of-service rules and by falsifying his hours-of-service by not logging
in while operating Employer’s truck, the Board’s order denying Claimant UC benefits
is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
6
However, even if the Board had relied on Employer Exhibit No. 2, this evidence was
admissible and/or sufficiently corroborated by other competent evidence in the record such that the
Board would have been permitted to rely on it in rendering its findings of fact. See Walker, 367
A.2d at 370. First, the Text Message sent by Claimant regarding satellites falling from the sky was
corroborated by Ridenour, who testified that Claimant made a similar assertion at his termination
meeting. (N.T., 6/29/17, at 9.) Moreover, both the Text Message sent by Claimant and the
statement made by Claimant at his termination meeting were party admissions that were admissible.
See Sipps v. Unemployment Comp. Bd. of Review, 181 A.3d 479, 483 n.9 (Pa. Cmwlth. 2018)
(holding that the words of a party constitute an exception to the hearsay rule and that, therefore,
party admissions may support a referee’s finding of fact). Second, although the Letter was written
by Claimant’s supervisor, who did not testify, the Letter mainly details the reasons for Claimant’s
discharge, which were corroborated by Ridenour’s testimony. Thus, even if the Board had relied on
the Letter, which it did not, there was evidence in the record to corroborate its contents.
7
Claimant also argues that he was prejudiced by not having the opportunity to object to
Employer’s hearsay evidence at the June 29, 2017 hearing based on the referee’s failure to continue
the hearing and that this alleged error was not rectified by the September 15, 2017 hearing, at which
Claimant testified, because the hearsay evidence remained on the record. However, the Board has
wide latitude to order remand hearings and is not required to order a de novo hearing, even when a
party had proper cause for not appearing at an original hearing. Milewski v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 2059 C.D. 2012, filed May 23, 2013), slip op. at
5-6; Stop-N-Go of Western Pennsylvania, Inc. v. Unemployment Compensation Board of Review,
707 A.2d 560, 564 (Pa. Cmwlth. 1998).
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert D. Anderson, :
Petitioner :
: No. 144 C.D. 2018
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 8th day of February, 2019, the January 5, 2018 order
of the Unemployment Compensation Board of Review is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge