Bailey v. Unemployment Compensation Board of Review , 142 Pa. Commw. 294 ( 1991 )

PELLEGRINI, Judge.

Carlton Bailey (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee’s decision denying him unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Law),¹ Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e), for willful misconduct resulting in his discharge from employment.

Claimant was employed by Kill Ltd. — New Jersey Cleaners (Employer), a dry-cleaning business, as a cleaner for two years prior to his discharge. According to the Referee’s findings of fact, on July 25, 1990, while at work, Claimant was approached by a terminal supervisor while he was sitting and eating cookies. The terminal supervisor asked Claimant why he was sitting and he responded that he was on his break. Claimant then asked the terminal supervisor why she was inquiring. An argument ensued during which time Claimant allegedly directed abusive profanities towards the terminal supervisor. Claimant was not scheduled to work the following two days, but when he reported for work on July 28, 1990, Claimant was told by one of the owners of Kill Ltd. that he was being discharged because the kind of behavior he had exhibited towards the terminal supervisor would not be tolerated.

Claimant filed a claim for unemployment compensation benefits with the Office of Employment Security (OES). The request was denied on the basis of Section 402(e) of the Law, as a discharge from work due to willful misconduct connected with the job. On appeal, the Referee issued a decision affirming the OES. The Referee concluded that because Claimant had acknowledged that he directed vile and abusive language towards the terminal supervisor and was not justified in his actions, he had displayed a wanton disregard of the standard of behavior the Employer had a right to expect from Claimant as an employee which amounted to willful misconduct. Claimant appealed to the Board, which issued a decision affirming the Referee. Claimant then filed the present appeal.

The issues now before us are whether the Board erred in determining that the Claimant directed abusive profanities towards the terminal supervisor and, if not, whether that conduct constituted willful misconduct.

Where a claimant has been denied benefits under Section 402(e) of the Law, the Employer has the burden of proving the willful misconduct for which the employee was terminated. Browning-Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 93 Pa.Commonwealth Ct. 460, 501 A.2d 711 (1985). For behavior to constitute willful misconduct, the employee’s behavior must evidence (1) the wanton and willful disregard of the employer’s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer’s interests or the employer’s duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Commonwealth Ct. 90, 309 A.2d 165 (1973).

The Employer contends that it met its burden of proving that Claimant’s behavior amountéd to willful misconduct because the Employer admitted into evidence without objection a note written by the terminal supervisor to the owners of Kill, Ltd., specifying the abusive language directed at her by Claimant.² Also, Claimant actually testified that he directed abusive language at the terminal supervisor and admitted that he used bad language in his written Summary of Interview form which was also submitted into evidence by the Employer without objection.

Although the Referee determined that the Employer had met its burden of proving that Claimant’s conduct amounted to willful misconduct, he did so based on his finding that Claimant had directed vile and abusive language towards the terminal supervisor and had done so without justification. However, the record reveals that Claimant never acknowledged that he directed vile and abusive language towards the terminal supervisor, but only testified that he told her, “[G]et out of my face.” (N.T. at 4.) Claimant further testified that one word led to another, but when he was questioned as to the exact words he uttered, he responded, “I can’t remember exactly, I can just tell you how the outcome came. I can’t remember each word that was carried.” (N.T. at 5.) At no time did Claimant testify as to the specific language which he directed at the terminal supervisor, but only acknowledged that he used abrasive language. (N.T. at 5.) As such, the Referee had no substantial evidence upon which to make a finding that Claimant had directed abusive language towards the terminal supervisor, and the Board erred in affirming the Referee’s decision on that basis.

Regarding the note which the terminal supervisor wrote to the owners of Kill, Ltd., that piece of evidence, which was entered into evidence without objection, was hearsay, because the terminal supervisor did not testify regarding the note, and the note was offered into evidence by the Employer to provide the Referee with proof of the exact language used by Claimant.³ Although hearsay evidence admitted into evidence without objection will be given its natural probative effect and may support a finding of the Board if it is corroborated by any competent evidence in the record, a finding of fact based solely on hearsay will not stand. Walker v. Unemployment Compensation Board of Review, 27 Pa.Commonwealth Ct. 522, 367 A.2d 366 (1976). Because Claimant’s testimony did not support a finding that he directed abusive language towards the terminal supervisor, the note did not corroborate Claimant’s testimony. Therefore, the note, as hearsay evidence standing alone, could not support the Referee’s and Board’s findings that Claimant directed abusive language towards the terminal supervisor.

Regarding the Summary of Interview form, the Employer correctly states that Claimant wrote in that form that he had used bad language,⁴ and that admission by Claimant constituted an exception to the hearsay rule.⁵ As such, the Employer argues that the form was competent evidence to support the Referee’s and Board’s finding that Claimant directed abusive language at the terminal supervisor. However, even though the form may be competent evidence, it does not support a finding that Claimant used abusive language. Not only have we determined that the Board incorrectly concluded that Claimant used “abusive” language based on his own testimony, but Claimant merely states in that form that he used “bad words.” Bad words in one individual’s vocabulary may not be considered bad words in another’s vocabulary. Without any explanation by Claimant regarding what the bad words consisted of, we cannot assume that the bad words he used were abusive and amounted to willful misconduct. Consequently, we cannot find that the Summary of Interview form supports the denial of Claimant’s benefits.⁶

Because the findings of fact made by the Board are binding on appeal only when the record contains substantial evidence to support those findings, we hold that the Board’s findings were not supported by substantial evidence, and, therefore, are not binding on this court. Norman Ashton Klinger & Associates, P.C. v. Unemployment Compensation Board of Review, 127 Pa.Commonwealth Ct. 293, 561 A.2d 841 (1989). Accordingly, the decision of the Board denying Claimant unemployment compensation benefits is reversed.

ORDER

AND NOW, this 5th day of September, 1991, the order of the Unemployment Compensation Board of Review, dated December 24, 1990, No. B-286927, is reversed.

1 . Section 402(e) of the Law provides the following:

An employee shall be ineligible for compensation for any week in 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.

2 . The note which was written by the terminal supervisor and given to the owners of Kill, Ltd. stated the following:

Around 6:30 p.m., Carlton Bailey was sitting on a yellow cart in the package express area. I asked him if he was on break. He started shouting all types of profanity such as Fuck you and Bitch. Frank Farrow and Herb Jackson talk to him outside, when you could still hear him call me all types of names.

3 . Hearsay is defined as an out-of-court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement. Spotts v. Reidell, 345 Pa.Superior Ct. 37, 497 A.2d 630 (1985).

4 . Specifically, Claimant wrote in the Summary of Interview form, “I got hot and used some bad words.”

5 . See Wyke v. Ward, 81 Pa.Commonwealth Ct. 392, 474 A.2d 375 (1984), where this court found that a letter written by the Secretary of Transportation acknowledging that a certain intersection was unsafe was an admission and a well-recognized exception to the hearsay rule.

6 . Because we found that Claimant’s conduct did not amount to willful misconduct, we do not reach the issues raised by the Employer as to whether Claimant’s use of abusive language was provoked or de minimis.