Boliver v. Commonwealth
Boliver v. Commonwealth
Opinion of the Court
Opinion by
Claimant Jean Boliver appeals from an order of the Unemployment Compensation Board of Review which determined that the claimant was ineligible to receive benefits because of willful misconduct under section 402(e) of the Unemployment Compensation Law,
According to the boards findings, the claimant worked for eleven years as a nurses aide at St. Pauls Health Center, a nursing home for the elderly and infirm. An employee of the nursing home is subject to immediate discharge for abusive or inconsiderate treatment of a resident. On November 18, 1984, the claimant was abusive to a. male stroke victim in that she “yanked” him out of his wheelchair and treated him roughly while dressing him. On November 26, 1984, the employer discharged the claimant for alleged abusive treatment of that resident.
Neither the alleged victim nor resident-witnesses testified before the referee. Instead, the employers Director of Nursing offered into evidence various documents from the claimants personnel file. Those documents consisted of incident reports which the claimants supervisors had prepared after investigating instances where the claimant had difficulties with some of the patients. Included among those documents was a report which the board relied on, dated November 26, 1984, which the claimants immediate supervisor had prepared after investigating a complaint regarding the claimants alleged abusive treatment of a resident. Addi
The key issue is whether the board erred
In Treon, the Supreme Court held that the board may not simply disregard a referees findings which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.
The claimant contends that the boards findings are not supported by competent evidence because they are based on hearsay evidence, properly objected to at the hearing. Hearsay evidence, offered against objections, as here, is not competent to support a finding. Everette v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 341, 414 A.2d 730 (1980).
In determining the admissibility of investigation reports, this court has addressed similar situations specifically involving the discharge of medical aides for alleged abusive treatment of patients. In Ellis v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 628, 425 A.2d 496 (1981), the employer introduced into evidence a report of an investigation containing interviews of the alleged victim and witness, as well as numerous written statements by hospital employees regarding the alleged victim. In deter
The most striking point with respect to the evidence presented against Claimant is that it is all hearsay. Neither the alleged victim nor the alleged identification witness attended either hearing. No other witnesses to the alleged incident were produced by the Employer. [A nurses] testimony was based on interviews with persons not present at either hearing. The Employers investigative report was based primarily upon additional interviews with persons who did not testify.
Ellis at 632, 425 A.2d at 498.
Here, the reports offered into evidence were also based on interviews with persons not present at the hearing; the alleged victim and the witnesses did not attend the hearing.
Similarly, in Hernandez v. Unemployment Compensation Board of Review, 82 Pa. Commonwealth Ct. 353, 475 A.2d 179 (1984), this court also reviewed a proceeding where the employer offered into evidence the medical aides personnel file containing investigation reports of the aides alleged abusive treatment of patients. In determining that the employer failed to establish the indicia of reliability necessary to qualify the documents in the personnel file as business records, this court also noted that the employer failed to provide testimony or evidence to show why the residents who gave the information which formed the basis of the reports were not available for the hearing. The employer here explained to the referee the possible difficulty involved in bringing a resident-witness to the hearing. However, this court also addressed a similar assertion in Hernandez and stated that “if these patients could not attend the hearing because of their physical condition, questions
Although the employer offered the testimony of the custodian of the personnel file in order to lay a proper foundation for its admission, mere maintenance of hearsay documents in a personnel file does not overcome the inherent reliability problem with the evidence. Moreover, an employee whose termination is based on the statements of witnesses must be afforded the opportunity to confront and cross-examine the accusers. Hernandez at 359, 475 A.2d at 182.
Therefore, the investigation reports in the claimants personnel file, offered in the face of objections, were not admissible under the business record exception, and the board was required to disregard them. Westinghouse Electric Corporation v. Unemployment Compensation Board of Review, 73 Pa. Commonwealth Ct. 243, 458 A.2d 301 (1983). Accordingly, the board erred in its reliance on that inadmissible evidence.
Hence, the remaining issue is whether, excluding the investigation reports,. there is substantial evidence to support the boards ultimate conclusion of willful misconduct.
The board asserts that there is: sufficient evidence remaining to support the boards conclusion. Specifically, the board asserts that a witness testified “directly to witnessing an incident of patient abuse in which the claimant pulled a patient roughly from a chair.” Because that testimony referred to an incident which had occurred one year before the claimants termination, that evidence cannot substantiate the boards finding regarding the November 18, 1984 incident. Similarly, the boards reliance on testimony relating to the claimants admission concerning her treatment of patients in June, 1984, also fails to support the boards finding as to the November, 1984 incident.
Accordingly, we must reverse the boards order.
Order
Now, March 12, 1987, the order of the Unemployment Compensation Board of Review, No. B-239275, dated April 3, 1985, is reversed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
This courts scope of review is limited to determining whether constitutional rights were violated, an error of law has been committed, or whether substantial evidence supports necessary findings of feet. Estate of Francis J. McGovern v. State Employees Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
Section 6108(b) of that act provides:
(b) General Rule.—A record of an act, condition or event shall, insofer 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.
The board asserts that the claimants Treon argument “has been rendered moot by Peak v. Unemployment Compensation
Reference
- Full Case Name
- Jean L. Boliver v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review
- Cited By
- 2 cases
- Status
- Published