Employer relies on L. Washington & Associates v. UCBR, 662 A.2d 1148 (Pa. Cmwlth. 1995), for the proposition that one’s silence may constitute an admission. The "failure of a party to reply to a statement made in his presence or at hearing, is significant only where the nature of the statement, and the circumstances under which it was made, are such as render a reply natural and proper." L. Washington, 662 A.2d at 1149. (quoting Levin v. Van Horn, 412 Pa. 322, 194 A.2d 419 (1963)). However, this Court has limited the application of L. Washington in Carson v. UCBR, 711 A.2d 582 (Pa. Cmwlth. 1998), where we explained that in order for this proposition to apply, an employer must ask a claimant about the allegation prior to hearing or at the hearing in front of the referee. Carson, 711 A.2d at 585. Specifically, this Court opined:
Our [previous] holdings are not to be considered a lessening of employer’s burden of proof in a willful misconduct case. It is not appropriate to require a claimant to deny uncorroborated, hearsay allegations raised by an employer at a hearing, particularly when the burden of proof lies with the employer. Id.
Here, Employer is asking this Court to require Claimant to deny uncorroborated hearsay allegations. At no time during the hearing did Employer or Employer’s counsel directly ask Claimant her whereabouts on the days she called off. As Carson points out, "we will not penalize claimant for the tactical errors made by employer in this case." Carson, 711 A.2d at 585. L. Washington would be applicable if Employer confronted Claimant during the hearing about her specific dates at the beach, but this was not the case.
_____________________
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
