¶1dissenting.
¶2I respectfully dissent. The School District was required to prove by substantial evidence that Harmon conspired with and provided money to Wagner to purchase marijuana. At the hearings before the school board, Wagner asserted his Fifth Amendment rights, and Osborne testified he had been told by Wagner that Harmon was involved in the conspiracy, but had no first hand knowledge of such involvement.
¶3Aside from such hearsay evidence, the School District proved only that Harmon had refused to answer Dr. Bohn’s questions, which Dr. Bohn told him he need not answer, and that Harmon had also asserted his Fifth Amendment rights.
¶4The majority has properly held that the refusal to answer Dr. Bohn’s questions was not substantial evidence, but that Harmon’s assertion of his Fifth Amendment rights proved the School District’s case, citing Caloric Corp. v. Unemployment Compensation Board of Review, 70 Pa.Cmwlth. 182, 452 A.2d 907 (1982). However, in Caloñe, in affirming the claimant’s right to unemployment benefits, this court held that the inference that might be drawn from use of the self-incrimination privilege went only to the credibility of the employer’s evidence and did not provide substantial evidence of willful misconduct. In Caloñe, this court said:
[Although a trier of fact may draw an adverse inference from a party’s silence, such inference cannot be used as a substitute for the employer’s failure to introduce substantial evidence to meet its burden of proving that an employee’s discharge resulted from willful misconduct.
¶6Accordingly, I would affirm the order of the trial court.
¶7KELLEY and SMITH, JJ., join in this dissent.