K. Hauck v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kalvin Hauck, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1351 C.D. 2020
Respondent : Submitted: October 29, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE COVEY FILED: February 23, 2022
Kalvin Hauck (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) October 30, 2020
order affirming the Referee’s decision that denied UC benefits under Section
402(e.1) of the UC Law (Law).2 Claimant presents three issues for this Court’s
review: (1) whether the UCBR erred by concluding that Claimant violated Shop Vac
Corporation’s (Employer) Drug and Alcohol Free Workplace Policy (Drug Policy)
where Claimant made timely hearsay objections; (2) whether the UCBR’s factual
findings were supported by substantial, credible, and admissible evidence; and (3)
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, added by
Section 3 of the Act of December 9, 2002, P.L. 1330, 43 P.S. § 802(e.1) (relating to discharge for
“failure to submit and/or pass a drug test conducted pursuant to an employer’s established
substance abuse policy[]”).
whether the denial of benefits was based on erroneously admitted evidence. After
review, this Court affirms.
Employer hired Claimant as a full-time custodian on July 21, 2003.
Employer’s Drug Policy allows for drug testing under numerous circumstances,
including reasonable suspicion or for-cause testing, return-to-duty and follow-up
testing, and random employee testing. See Certified Record (C.R.) at 23-30. On
August 3, 2006, Claimant acknowledged receipt of the Drug Policy. See C.R. at 71.
On July 8, 2019, Employer directed Claimant to take a drug test. Claimant failed
the drug test. On July 13, 2019, Employer discharged Claimant for violating the
Drug Policy.
Claimant applied for UC benefits. On August 16, 2019, the Altoona
UC Service Center determined that Claimant was ineligible for benefits under
Section 402(e.1) of the Law. Claimant appealed, and a Referee held a hearing on
September 18, 2019. Claimant did not appear at the hearing; however, his counsel
attended. Employer’s Director of Human Resources and Payroll Allison Leta (Leta)
attended the hearing and testified on Employer’s behalf.
At the hearing, Claimant’s counsel objected to two Employer exhibits:
(1) Exhibit 6 - MidState Occupational Health Services’ drug test lab results (Lab
Report), and (2) Exhibit 13 - the UC Service Center’s Employer Questionnaire
(Employer Questionnaire). After the Referee identified the proposed exhibits, the
following exchange occurred among the Referee, Claimant’s counsel, and Leta:
[Claimant’s lawyer:] I would object to Exhibit #6 on the
basis of hearsay and also Exhibit #13 to the extent it’s
being offered for the truth of the information. I’m not sure
who prepared the document. It says Employer
Questionnaire, but I’m not sure who prepared it. So I’m
objecting to that also, based on a hearsay objection.
R[eferee:] Thank you. [Exhibit] #6 is the [Lab Report]. []
Leta, how does [Employer] get this document?
2
[Leta:] That document is emailed to [Employer’s Human
Resources Department (Human Resources)].
R[eferee:] And is it emailed to you or is it emailed to
someone else from [H]uman [R]esources?
[Leta:] It’s emailed to two people in [H]uman -- our safety
manager and another person in [H]uman [R]esources.
R[eferee:] So it’s not you?
[Leta:] It was not me at the time. I do receive them now,
but at that particular time, it was emailed to [the Human
Resources] [a]ssistant [m]anager and our [s]afety
[m]anager.
R[eferee:] So are you the custodian of this record?
[Leta:] You mean the person who received it first?
R[eferee:] The person who is in charge of keeping the
document?
[Leta:] It is kept in the [Human Resources] office in a
locked filing cabinet.
R[eferee:] I’m going to overrule the objection. I’ll allow
it in and I’ll give it its own weight regarding today’s
hearing. [Exhibit] #13 is an Employer Questionnaire. It
does not have a name of the person who completed it. []
Leta, do you know, are you the person who completed the
Employer Questionnaire for [] Employer?
[Leta:] I believe I handled all of the questionnaires. I can
look at the handwriting.
R[eferee:] Is that your handwriting on the document?
[Leta:] Yes, that is my handwriting.
R[eferee:] The objection to [Exhibit] #13 is overruled. . . .
[Exhibits] 6 and 13 will be allowed into the record.
C.R. at 66-67 (emphasis added).
3
Leta later testified:
[Claimant] was given a random drug test per [the Drug
Policy]. The morning that he -- Monday morning. And
[Employer] received a non-negative result at first, which
means it had to be sent out for testing. . . . [W]e received
the results on [July 12, 2019,] and we notified him on [July
13, 2019,] that h[is employment] was terminated due to a
positive drug screen.[3]
C.R. at 68. Leta related that she was not involved in Claimant’s drug testing or in
requesting the drug test, see C.R. at 69, and she was not the individual who informed
Claimant that he was discharged. See C.R. at 68. Leta also presented the document
titled Production Employee Orientation, which Claimant signed, acknowledging,
inter alia, his receipt of the Drug Policy. This was the entirety of Leta’s substantive
testimony regarding Claimant’s discharge.
On September 19, 2019, the Referee affirmed the UC Service Center’s
determination denying Claimant UC benefits pursuant to Section 402(e.1) of the
Law. Claimant appealed to the UCBR. On January 21, 2020, the UCBR affirmed
the Referee’s determination (Original Decision). In its Original Decision, the UCBR
incorrectly stated that the Referee had sustained Claimant’s objection to the Lab
Report’s admissibility. Claimant requested reconsideration, which the UCBR
granted with respect to whether the UCBR properly considered the Lab Report. On
October 30, 2020, the UCBR issued a new decision (October Decision), again
denying Claimant UC benefits under Section 402(e.1) of the Law.
The UCBR declared:
On appeal, [] [C]laimant also argues that the Referee erred
by admitting the Employer Questionnaire (Ex. 13) over
[C]laimant’s objection. Although [Leta] prepared the
responses on the Employer Questionnaire, [Leta]
admittedly had no first-hand knowledge of the events at
3
Leta stated that the Lab Report showed that Claimant tested positive for cocaine
metabolite. See C.R. at 68.
4
issue and, as a result, the Referee should have sustained
the objection to the extent that the Employer
Questionnaire contained hearsay statements. Nonetheless,
this ruling does not change the result.
C.R. at 170.
With respect to the Lab Report’s admissibility, the UCBR explained:
[E]mployer also met its burden to prove that [C]laimant
failed the drug and alcohol test. The [UCBR’s] [O]riginal
[D]ecision inaccurately stated that the Referee sustained
[C]laimant’s objection to exclude the drug test results.
However, a further review of the record reveals that the
Referee overruled [C]laimant’s hearsay objection to the
admission of the drug test results. The Referee’s
acceptance of the test results into the record was
proper because drug test results contained in a lab
report are fact, not opinion, evidence and, as such, not
hearsay; such medical “facts” contained in a lab report
are, therefore, admissible and not hearsay. See UGI
Util[s.], Inc. v. U[nemployment] C[omp.] B[d. of] R[ev.],
851 A.2d 240, 248 (Pa. Cmwlth. 2004).
C.R. at 169 (emphasis added; citation omitted). Claimant requested reconsideration
of the October Decision, which the UCBR denied. Claimant appealed to this Court.4
Initially, Section 402(e.1) of the Law provides that an employee shall
be ineligible for UC benefits for any week
[i]n which his unemployment is due to discharge . . . due
to failure to submit and/or pass a drug test conducted
pursuant to an employer’s established substance abuse
policy, provided that the drug test is not requested or
implemented in violation of the law or of a collective
bargaining agreement [(CBA)].
43 P.S. § 802(e.1).
4
“‘Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether the findings of fact were unsupported
by substantial evidence.’ Miller v. Unemployment Comp. Bd. of Rev., 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).” Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth.
2018).
5
To render an employee ineligible for UC benefits under
Section 402(e.1) of the Law, an employer is required to
demonstrate (1) that it had an established substance
abuse policy and (2) that the claimant violated the
policy. UGI . . . , 851 A.2d [at] 252 . . . . If an employer
meets its initial burden, a claimant will be rendered
ineligible for benefits unless the claimant is able to
demonstrate that the employer’s substance abuse policy is
in violation of the law or a CBA. Id. ([“]The terms of [the
employer’s substance abuse] policy may be trumped by
statute or [a CBA], but it is the claimant’s burden to
develop the record appropriately to succeed in that
defense.[”]). Greer v. Unemployment Comp. Bd. of Rev[.],
4 A.3d 733, 736 (Pa. Cmwlth. 2010) (footnote omitted).
Pittsburgh Water & Sewer Auth. v. Unemployment Comp. Bd. of Rev., 242 A.3d 704,
707 (Pa. Cmwlth. 2020) (quoting Bowers v. Unemployment Comp. Bd. of Rev., 165
A.3d 49, 52-53 (Pa. Cmwlth. 2017) (emphasis added)).
This Court has explained:
Section 402(e.1) of the Law requires an employer to
demonstrate that it had adopted a substance abuse policy
that was violated by the employee in order for that
employee to be rendered ineligible for benefits. . . .
Section 402(e.1) [of the Law] does not relieve an
employer of laying a foundation for a drug test report.
UGI, 851 A.2d at 252 (emphasis added). Drug test results must be admitted through
“someone with knowledge of the testing procedure.” O’Brien v. Unemployment
Comp. Bd. of Rev., 49 A.3d 916, 919 (Pa. Cmwlth. 2012).
Claimant first argues that the UCBR erred by concluding that record
evidence established that Claimant violated Employer’s Drug Policy where
Claimant made timely hearsay objections to the Lab Report.
In its October Decision, the UCBR affirmed the Referee’s decision to
admit the Lab Report into evidence based on the UGI Court’s holding that “drug test
6
results contained in a lab report are fact, not opinion, evidence and, as such, not
hearsay . . . .”5 UGI, 851 A.2d at 248. The UCBR further reasoned:
On appeal, [C]laimant argues that [E]mployer failed to
establish a proper foundation for the proffered drug test
results; however, because [C]laimant did not raise an
objection for improper foundation before the Referee,
he may not do so for the first time before the [UCBR].
As a result, the drug test results submitted by
[E]mployer are competent evidence and may support a
finding of fact. Based on the drug test results submitted
by [E]mployer, the [UCBR] concludes that [C]laimant
failed a random drug test administered by [E]mployer by
testing positive for alcohol[6] and cocaine metabolite.
C.R. at 169 (emphasis added). However, Claimant did object to the Lab Report’s
admissibility on hearsay grounds at the time the document was being offered. Thus,
the issue is not waived.
[This Court] ha[s] consistently applied the following
standard, referred to as the Walker Rule, to determine
whether hearsay evidence is admissible at administrative
proceedings:
(1) Hearsay evidence, [p]roperly objected
to, is not competent evidence to support a
finding of [an agency][;]
(2) Hearsay evidence, [a]dmitted without
objection, will be given its natural probative
effect and may support a finding of [an
agency], [i]f it is corroborated by any
competent evidence in the record, but a
finding of fact based [s]oley on hearsay will
not stand.
5
“Hearsay, defined as a declarant’s out-of-court statement or assertion offered into
evidence to prove the truth of the matter asserted, is generally inadmissible unless an exception
applies.” Worley v. Cnty. of Del., 178 A.3d 213, 230 (Pa. Cmwlth. 2017).
6
The UCBR acknowledges in its brief that its finding that Claimant tested positive for
alcohol was incorrect. See UCBR Br. at 3 n.2.
7
Rox Coal Co. v. Workers’ Comp. Appeal Bd.
(Snizaski), . . . 807 A.2d 906, 915 ([Pa.] 2002) (citing
Walker v. Unemployment Comp. Bd. of Rev[.], . . . 367
A.2d 366, 370 ([Pa. Cmwlth.] 1976)).
Lancaster Cnty. Child. & Youth Servs. Agency v. Dep’t of Hum. Servs., 235 A.3d
402, 411 (Pa. Cmwlth. 2020) (emphasis added).
Pennsylvania Rule of Evidence (Rule) 802 specifically prohibits
hearsay evidence absent an exception. “Where a hearsay document contains
additional hearsay within it (often referred to as ‘double hearsay’), each level of
hearsay must satisfy an exception to the rule prohibiting the admission of hearsay
evidence.” In re A.J.R.-H., 188 A.3d 1157, 1169 (Pa. 2018). “[T]he burden of
production is on the proponent of the hearsay statement to convince the court of its
admissibility under one of the exceptions.” Commonwealth v. Smith, 681 A.2d 1288,
1290 (Pa. 1996); see also Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270, 1278
(Pa. Super. 2005) (The “proponent of the statement[] bears the burden of proof and
must convince the court that the hearsay statement is admissible . . . .”).
Section 6108(b) of the [Uniform Business Records as
Evidence] Act[, 42 Pa.C.S. § 6108(b) (BREA),] states:
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.
42 Pa.C.S. § 6108(b) (emphasis added). In discussing this
exception to the hearsay rule, this [C]ourt has held:
Under this exception, it is not essential to
produce either the person who made the
entries or the custodian of the record at the
8
time the entries were made or that the witness
qualifying the business records even has
personal knowledge of the facts reported in
the business record. As long as the
authenticating witness can provide
sufficient information relating to the
preparation and maintenance of the
records to justify a presumption of
trustworthiness of the business records of
a company, a sufficient basis is provided to
offset the hearsay character of the
evidence.
Virgo v. Workers’ Comp. Appeal Bd. [(Cnty. of Lehigh-
Cedarbrook)], 890 A.2d 13, 20 (Pa. Cmwlth. 2005)
(citations omitted). Furthermore, in a decision discussing
the admissibility of drug test results under Section 6108(b)
of the [BREA], this [C]ourt held that the testimony of the
supervisor of those persons who are actually performing
the drug testing of a urine specimen[] is sufficient to
establish the reliability and trustworthiness of the evidence
under the [BREA].
Turner v. Unemployment Comp. Bd. of Rev., 899 A.2d 381, 386 (Pa. Cmwlth. 2006)
(bold emphasis added).
In addition, Rule 803(6) specifies that the rule against hearsay will not
exclude “[r]ecords of a [r]egularly [c]onducted [a]ctivity” if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) [(relating to
certified domestic or foreign records of a regularly
9
conducted activity)] or with a statute permitting
certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803(6).
According to the Pennsylvania Supreme Court,
[t]he business records exception has been incorporated
into Pennsylvania law through the [BREA], which was
originally enacted in 1939, and [Rule] 803(6), originally
adopted in 1998, which generally tracks Federal Rule of
Evidence 803(6) [Fed. R. Civ. P. 803(6),] . . . respectively.
The [BREA] and [] Rule [803(6)] substantially overlap in
that both generally require that a custodian or other
qualified witness testify that the record was made “at
or near the time” of the event recorded and that the
record was kept in the regular course of business. Id.Moreover, both provide for the trial court to make a
determination in regard to whether the circumstances
surrounding the record “justify its admission” or
“indicate a lack of trustworthiness.” Id.Bayview Loan Servicing LLC v. Wicker, 206 A.3d 474, 483 (Pa. 2019) (emphasis
added; footnote omitted).
Relying, in part, on UGI, Claimant contends that “Pennsylvania case
law firmly requires that medical reports be admitted as business records before the
[UCBR] can consider the substantive ‘medical facts.’ The [UCBR] skipped this
step and instead went straight to the test results within the Lab Report.” Claimant
Reply Br. at 2-3. According to Claimant,
[t]he [UCBR]’s position rests on its conclusion that “[t]he
Referee properly overruled Claimant’s hearsay objection
to the drug test results and admitted the drug test results
into the record because this Court has held that drug test
results contained in a lab report are fact, not opinion,
evidence and, as such, not hearsay.” [UCBR Br.] at 5
(emphasis added). The [UCBR] does not once grapple
10
with the hearsay nature of the [L]ab [R]eport and instead
skips to the second level of hearsay.
Claimant Reply Br. at 2 n.1. This Court agrees.
The UGI Court held that drug test results contained in a lab report that
is admissible under the BREA “are fact, not opinion, evidence and, as such, not
hearsay by reason of [the BREA].” UGI, 851 A.2d at 248. Accordingly, “medical
‘facts’ contained in a lab report are, therefore, admissible and not hearsay.” Id.Nonetheless, in order for test results contained in a lab report to be admissible, the
lab report itself must be admissible under an exception to the hearsay rule, such
as the BREA or Rule 803(6). To fall within the aforementioned exceptions to the
hearsay rule, a lab report must be properly authenticated pursuant to Section 6108(b)
of the BREA or in accordance with Rule 803(6).
Unlike in UGI, where the claimant “did not object to the admission of
the lab reports on any ground[,]” here, Claimant did object to the Lab Report’s
admissibility on hearsay grounds at the time the document was being offered. UGI,
851 A.2d at 250. Contrary to the UCBR’s contention, it was unnecessary for
Claimant to object to the document’s admission based on “foundation or
authentication or chain of custody or busines[s] record exception[,]” because
Claimant objected to the document as hearsay. UCBR Br. at 9. It was then
Employer’s burden to demonstrate that the document was either not hearsay, or was
admissible pursuant to an exception to the hearsay rule, such as the BREA or Rule
803(6), under which those issues are considered. See Smith. To show that the Lab
Report was admissible under the BREA or Rule 803(6) as an exception to the
hearsay rule, Employer was required to properly authenticate it in accordance
therewith.
Notably, Employer, through Leta, did not directly respond to
Claimant’s objection to propose a particular exception to the hearsay rule. Rather,
11
the Referee asked Leta a few questions about the Lab Report, attempting to
determine whether the Lab Report constituted a business record under the BREA or
a record of a regularly conducted activity under Rule 803(6). In response, Leta
provided the following information regarding the Lab Report: (1) she did not
personally request the drug test; (2) Employer receives lab reports by email - “[t]hat
document is emailed to [the Human Resources Department,]” C.R. at 66; (3) the Lab
Report was emailed to an assistant manager in the Human Resources Department
and Employer’s safety manager, and not Leta, but now they are emailed to her; and
(4) Human Resources maintains the Lab Report in a locked filing cabinet. See C.R.
at 66-67.
This Court cannot overlook the fact that Leta did not testify regarding
the testing procedure, who sent the email, whether and/or how Lab Reports are sent
in the regular course of business, and whether she is currently the person who stores
said Lab Reports. Accordingly, the Referee erred by overruling Claimant’s hearsay
objection to the Lab Report. See UGI.7
Notwithstanding, the UCBR maintains that the record evidence
supports its October Decision. The UCBR argues that, in accordance with Greer,
“[i]ntroducing drug test results into evidence is not the sole means by which an
employer can demonstrate a claimant violated its substance abuse policy. Violation
of an employer’s substance abuse policy also can be established by a claimant’s own
admission that he or she violated the policy.” Id. at 737. Claimant rejoins that
7
See also In re A.J.R.-H. Therein, the Pennsylvania Supreme Court determined that
exhibits were improperly admitted under the business record exception where the county children
and youth services (CYS) “did not present any witness in support of the exhibits’ admission, let
alone ‘the custodian or other qualified witness.’ See 42 Pa.C.S. § 6108(b); Pa.R.E. 803(6)(D).”
In re A.J.R.-H., 188 A.3d at 1167-68. Further, the county solicitor provided the only information
supporting the exhibits’ admission in response to the orphans’ court’s leading question, stating
“that the exhibits were contained in CYS’s files and ‘were collected in the ordinary course of
business with regard to th[e] case.’ [Notes of Testimony], 8/12/2016, at 18-19; see 42 Pa.C.S. §
6108(b); Pa.R.E. 803(6)(B).” In re A.J.R.-H., 188 A.3d at 1168.
12
findings of fact numbers 4, 5, and 6 are not supported by substantial, competent, and
admissible evidence.
“In determining whether a finding of fact is supported by substantial
evidence, the Court is required to give the party in whose favor the decision was
rendered ‘the benefit of all reasonable and logical inferences that may be drawn from
the evidence of record.’” Allegheny Cnty. Off. of Child., Youth & Families v. Dep’t
of Hum. Servs., 202 A.3d 155, 164 (Pa. Cmwlth. 2019) (quoting S.T. v. Dep’t of Pub.
Welfare, Lackawanna Cnty. Off., Child., Youth & Fam. Servs., 681 A.2d 853, 856
(Pa. Cmwlth. 1996)). “Mere speculation or conjecture is insufficient to support a
factual finding, but where there exists the ability to draw reasonable and logical
inferences from evidence that is presented, including testimony, a conclusion so
derived will be sufficient, even if it may not be the only possible conclusion.” W.
Penn Allegheny Health Sys. v. Workers’ Comp. Appeal Bd. (Cochenour), 251 A.3d
467, 475 (Pa. Cmwlth. 2021).
Recently, this Court explained:
A claimant’s “admissions [] constitute independent
evidence of themselves and are therefore capable of
independently providing competent evidence to support
the findings of the [UCBR].” Unemployment Comp. Bd.
of Rev. v. Houp, . . . 340 A.2d 588, 591 ([Pa. Cmwlth.]
1975). “[W]ords of a party constitute an admission and
therefore may always be used against him.” Stugart v.
Unemployment Comp. Bd. of Rev., 85 A.3d 606, 608 (Pa.
Cmwlth. 2014) (quoting Evans v. Unemployment Comp.
Bd. of Rev., . . . 484 A.2d 822, 827 ([Pa. Cmwlth.] 1984)).
We have held that out-of-court statements by a
claimant on his submissions, such as the “claimant
questionnaire” and the “internet claim form,”
constitute party admissions that are admissible as an
exception to the hearsay rule. Havrilchak v.
Unemployment Comp. Bd. of Rev., 133 A.3d 800, 804 n.3
(Pa. Cmwlth. 2015) (citing Stugart, 85 A.3d at 606); see
also Greer . . . , 4 A.3d [at] 739 . . . . In Greer, we
determined that the “[v]iolation of an employer’s
13
substance abuse policy [] can be established by a
claimant’s own admission that he or she violated the
policy” where the claimant admitted such in his
questionnaire. [Id.] at 737. In summary, an employer’s
burden under Section 402(e.1) [of the Law] - to
establish the existence of an established drug policy and
that the claimant either refused to submit or failed a
required drug test - may be met solely by a claimant’s
admissions, whether those admissions occur in
submissions to the [UCBR] or at the hearing before the
[r]eferee.
Hubbard v. Unemployment Comp. Bd. of Rev., 252 A.3d 1181, 1188 (Pa. Cmwlth.
2021) (emphasis added).
The UCBR’s findings of fact numbers 4-6 state:
4. On[] July 8, 2019, [E]mployer directed [C]laimant to
take a random drug test.
5. On July 8, 2019, [C]laimant submitted a urine specimen
for testing.
6. [C]laimant’s drug and alcohol test tested positive for
alcohol and cocaine metabolite[].
C.R. at 168.
The UCBR asserts that its factual findings were supported by the
Record of Oral Interview (Oral Interview), the UC form questionnaire titled
“Discharge – Drug or Alcohol Test” (Discharge Questionnaire), and the Claimant
Questionnaire. Claimant did not object to these documents at the hearing and, thus,
the Referee admitted them into evidence. Further, Claimant does not suggest that
the UC Service Center accepted the Oral Interview, the Discharge Questionnaire,
and the Claimant Questionnaire other than in accordance with its regular process, or
that Claimant did not make the statements and representations contained therein.
With respect to finding of fact number 4, the Oral Interview reflects
that Claimant admitted: “After I got back from my rehab[,] [Employer] wanted me
14
to do a test. I guess it was [July 8, 2019]. I know it was a Monday.” C.R. at 32.
Further, Leta testified that on July 8, 2019, Claimant “was given a random drug test
. . . .” C.R. at 68. This record evidence supports finding of fact number 4.
Regarding finding of fact number 5, the only record evidence
supporting this finding is the improperly admitted Lab Report. Thus, finding of fact
number 5 is not supported by substantial evidence. Notwithstanding, the UCBR’s
finding that Claimant “submitted a urine specimen for testing” is a finding that is not
necessary to the UCBR’s determination that Employer had an established drug
policy and Claimant violated it, given Claimant’s admission that he failed the drug
test. C.R. at 168. See Monaghan v. Bd. of Sch. Dirs. of Reading Sch. Dist., 618 A.2d
1239, 1243 (Pa. Cmwlth. 1992) (“an unsupported finding of fact which is not
necessary to the adjudication merely constitutes harmless error”); see also Foreman
v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 1025 C.D. 2017, filed Aug.
22, 2018), slip op. at 9 (“because [the] finding of fact . . . was not necessary to the
decision, the unsupported finding constitutes harmless error”); Zurawski v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth. No. 610 C.D. 2015, filed Sept. 9,
2015), slip op. at 5 n.3 (“An unsupported finding of fact which is not necessary to
the adjudication constitutes harmless error.”).8
Finally, with respect to finding of fact number 6, although substantial
evidence does not support the UCBR’s finding that Claimant tested positive for
“cocaine metabolite[],” substantial evidence supports that he failed the drug test.
The Discharge Questionnaire contains Claimant’s acknowledgement to a UC
Representative that he was discharged; that a failed drug test was the reason he was
given for his discharge; that he did fail the drug test; and that Employer had an
8
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. Foreman and Zurawski are cited for their
persuasive value.
15
established substance abuse policy.9 See C.R. at 33. In the Claimant Questionnaire,
Claimant stated that personal and mental health issues were the reasons for the
actions that caused him to be discharged, and he “admit[ted] to being involved in the
incident that caused [his] separation.” C.R. at 7.
Further, Leta’s unobjected to testimony corroborated Claimant’s
admissions in the Claimant Questionnaire, the Discharge Questionnaire, and the Oral
Interview. Specifically, Leta testified:
[Claimant] was given a random drug test per [the Drug
Policy]. The morning that he -- Monday morning. And
[Employer] received a non-negative result at first, which
means it had to be sent out for testing. . . . [W]e received
the results on [July 12, 2019,] and we notified him on [July
13, 2019,] that h[is employment] was terminated due to a
positive drug screen.
C.R. at 68.10 Leta also presented Claimant’s signed Employee Orientation form
showing that Claimant acknowledged receipt of the Drug Policy. See C.R. at 68.
In Consolidated Scrap Resources, Inc. v. Unemployment Compensation
Board of Review (Pa. Cmwlth. No. 1002 C.D. 2010, filed Dec. 30, 2010),11 this Court
reversed the UCBR’s order affirming a referee’s decision that granted benefits where
the Court found that the claimant’s statements admitting that he failed the drug test
and explaining that drugs were in his system because he was around people who did
drugs, was “competent evidence of ineligibility under Section 402(e.1) [of the Law],
which requires proof only that the test was failed, not that the claimant actually took
drugs.” Slip op. at 7. Similarly, this Court concludes that there is competent record
9
In response to the Discharge Questionnaire request for “the reason [he was] given for
being discharged or suspended[,]” Claimant declared: “Failed [d]rug/[a]lcohol [t]est.” C.R. at 33.
In response to the question: “If separated as a result of failing a [d]rug/[a]lcohol test, did you fail
the test[,]” Claimant answered “[y]es[.]” Id. In addition, Claimant responded affirmatively to the
question, “[d]id your employer have an established substance abuse policy?” Id.10
Claimant did not object to this testimony.
11
Consolidated Scrap Resources is cited for its persuasive value.
16
evidence that Employer had an established substance abuse policy and that Claimant
failed Employer’s drug test.
Claimant further argues that his alleged admissions do not prove he
violated the Drug Policy because when he reported to the UC Representative that he
had failed the drug test, he was merely communicating what Employer told him was
the reason for his discharge, rather than actually admitting that he violated the Drug
Policy. Claimant cites Washington Health System v. Unemployment Compensation
Board of Review, 231 A.3d 79 (Pa. Cmwlth. 2020), wherein, prior to her drug test,
the claimant disclosed that she used Cannabidiol oil to manage her cancer symptoms.
“Following [the e]mployer’s presentation of its case, [the c]laimant answered ‘yes’
in response to the referee’s question as to whether [the e]mployer notified her that
she had tested positive for the presence of marijuana.” Id. at 82. The “[e]mployer
argue[d] that [the c]laimant admitted that she ‘failed’ the drug test.” Id. at 84. The
Washington Health System Court rejected the employer’s argument, noting that the
claimant “admitted only that someone told her [she had failed the drug test]. This
acknowledgement did not constitute an admission because she had no knowledge of
the underlying fact. It was simply uncorroborated hearsay, which she had no burden
to deny.” Id.
In contrast to Washington Health System, here, Claimant admitted not
only that a failed drug test was the reason for his discharge, but that he failed the
drug test, personal and mental health issues were the reasons for the actions that
caused him to be discharged, and his involvement in the incident caused his
separation. See C.R. at 7. See Greer; see also Dillon v. Unemployment Comp. Bd.
of Rev., 68 A.3d 1054 (Pa. Cmwlth. 2013). Claimant’s admissions contained in the
Oral Interview, the Discharge Questionnaire, and the Claimant Questionnaire, which
were admitted without objection and corroborated by Leta’s unobjected to
testimony, are sufficient to support the UCBR’s decision denying UC benefits.
17
Finally, Claimant contends that the UCBR wrongly denied Claimant
UC benefits because its denial was based on erroneously admitted evidence, and that
properly objected to hearsay cannot support disqualification from UC benefits. This
Court agrees with Claimant that erroneously admitted evidence cannot support a
denial of benefits. However, “[a]n appellate court may affirm on other grounds
where grounds for affirmance exist.” Martel v. Allegheny Cnty., 216 A.3d 1165,
1168 n.2 (Pa. Cmwlth. 2019). As discussed supra, Claimant’s corroborated
admissions support the denial of Claimant’s UC benefits.
For all of the above reasons, the UCBR’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kalvin Hauck, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 1351 C.D. 2020
Respondent :
ORDER
AND NOW, this 23rd day of February, 2022, the Unemployment
Compensation Board of Review’s October 30, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge