Bowers v. UCBR – Cmwlth. Court
– April 4, 2017
Publication order
http://www.pacourts.us/assets/opinions/Commonwealth/out/798CD16ORD_6-20-17.pdf?cb=1
(June 20, 2017)
Board decision denying benefits
under sec. 402(e.1), 43 P.S. sec. 802(e.1) (failure to submit to/pass drug
test) affirmed.
Key facts:
- the Board’s reliance on two reports of positive drug tests, which “were
admitted into evidence at the Referee hearing without objection.”
(emphasis added).
- rejection of claimant’s proferred negative drug test, to which the employer
did object and which were thus barred from consideration, because of claimant’s
failure to submit the test in advance of the telephone hearing, as required by
34 Pa. Code 101.130(e), 101.131(h), and as directed in the Notice of Hearing.
Note that the cited regulation
says that the “[w]hen
any testimony will be given from or with the aid of a document not previously
distributed to the parties by the tribunal, the party expecting to introduce
the document shall deliver it to the tribunal, and the tribunal shall
distribute it to each other party and, if known, counsel or authorized agent
before or at the beginning of the testimony,” unless the tribunal
requires that the documents be delivered “up to 5 days in advance of the
hearing.” Query: Did the employer produce its test reports in advance of the hearing? That issue is apparently not addressed in the opinion. If not, then were such reports admissible, even if the claimant failed to object to their admission?
