applying this principle in context of an admission by a party representative
How later courts described this case
- applying this principle in context of an admission by a party representative
Written by the judges who cited it.
The opinion
FRIEDMAN, Judge,
dissenting.
I respectfully dissent because I disagree with the majority that Dr. Eagle’s letter to Dr.- Zittle falls within any exception to the rule against hearsay. I do not believe that the letter was a representative (vicarious) admission. A statement is not admissible as a vicarious admission unless there is a principal-agent relationship and the person making the statement was authorized to speak for the principal. DeFrancesco v. Western Pennsylvania Water Co., 329 Pa.Superior Ct. 508, 478 A.2d 1295 (1984). Claimant and Dr. Eagle did not have a principal-agent relationship. An agency relationship occurs where the principal has manifested that the agent shall act on his or her behalf, the agent accepts this undertaking and it is understood between the parties that the principal is in control of the undertaking. Volunteer Fire Company of New Buffalo v. Hilltop Oil Company, 412 Pa.Superior Ct. 140, 602 A.2d 1348 (1992). This definition does not contemplate or encompass the physician-patient relationship between Claimant and Dr. Eagle.
Additionally, the majority opinion misstates the rule of law developed in Dorsey v. Unemployment Compensation Board of Review, 41 Pa.Commonwealth Ct. 479, 399 A.2d 809 (1979) so as to ignore a crucial factual distinction between this case and Dorsey . In Dorsey , claimant was denied unemployment benefits pursuant to § 401(d) of the Unemployment Compensation Law because her physician noted on a Doctor’s Request for Certification form that claimant was medically unable to accept gainful employment. The doctor had filled out the form and returned it to the Bureau of Employment Security at claimant’s specific request. This request is what transformed the physician-patient relationship into that of principal-agent. The majority opinion cites Dorsey for the proposition that there is a vicarious admission “where the claimant is given full opportunity to detail facts surrounding submission and preparation of the report.” The majority then concludes that Dr. Eagle’s opinion was a vicarious admission, reasoning that, because Claimant had the opportunity to explain that he thought Dr. Eagle’s opinion was based on a “mix-up,” he, like the claimant in Dorsey , *672 had a full opportunity to detail the circumstances of his doctor’s report. Contrary to the majority’s reading of Dorsey , I believe it was the Doctor’s Certification form cowpled, with claimant’s opportunity to detail the facts surrounding the report which rendered it admissible. Here, Dr. Eagle filled out no such form, with or without Claimant’s request. For this reason, Dorsey should be distinguished from the present case.
After concluding that Dr. Eagle’s letter was a vicarious admission, the majority opinion goes on to say that Dr. Zittle’s testimony was substantial evidence to support the UCBR’s finding even without that portion of Dr. Eagle’s letter which Dr. Zittle read into the record. Even if this is correct, I would still vacate and remand the case for a determination of whether Claimant needed a license in order to operate the forklift in question. The majority summarily concludes in footnote 8 that Fells “did not assert a lack of a license as the reason why he could not perform the forklift operator job at the hearing before the referee” and therefore waived this issue. I disagree; to the contrary, there is testimony throughout the hearing before the referee which suggests that Claimant needed a license to operate a forklift and that he did not have one. (R.R. at 49a, 61a-63a, 85a, 87a, 95a).
Employer has the burden of proving willful misconduct. Hershey v. Unemployment Compensation Board of Review, 146 Pa.Commonwealth Ct. 255, 605 A.2d 447 (1992). As a matter of law, Employer cannot meet that burden if the alleged “misconduct” arose from the employee’s refusal to comply with Employer’s request to perform an illegal act. I believe this is correct regardless of whether illegality is in fact the reason why the employee refuses the request. Therefore, I would vacate the UCBR’s order and remand the case for a determination of whether Claimant needed a license in order to operate the forklift.