Opinion
No. 1493 C.D. 2014
02-20-2015
Bryan F. Gottardy, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this appeal, Bryan F. Gottardy (Claimant), representing himself, asks whether the Unemployment Compensation Board of Review erred in denying him benefits under Section 402(e) of the Unemployment Compensation Law (Law) (relating to willful misconduct). There is no dispute that Claimant failed to timely appeal the Board's order denying him benefits. Further, although Claimant's appeal was timely from the Board's subsequent order denying his request for reconsideration, he presents no relevant argument as to how the Board abused its discretion in denying reconsideration. Thus, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Claimant worked for D. L. Leitzell & Son (Employer) as a carpenter. After his separation from employment in January 2014, he applied for unemployment compensation (UC) benefits, which were initially granted. Employer appealed.
A referee held a hearing at which Claimant, assisted by a certified legal intern, and Employer's president offered testimony. After the hearing, the referee denied UC benefits on the ground Claimant committed willful misconduct by violating Employer's policy that prohibits reporting to work under the influence of alcohol. Claimant appealed to the Board.
By decision dated July 16, 2014, the Board denied Claimant UC benefits (merits order). In so doing, the Board made four findings:
1. [Employer] employed [C]laimant from May 1, 2010, through January 18, 2014, finally as a full-time carpenter earning $15.00 per hour.Bd. Op., 7/16/14, Findings of Fact (F.F.) Nos. 2-4. The Board further explained:
2. [C]laimant knew that [E]mployer's policy prohibited reporting to work under the influence of alcohol.
3. When [C]laimant reported to work on the morning of January 18, 2014, he smelled of alcohol, staggered, and had slurred speech and glassy eyes.
4. [E]mployer discharged [C]laimant for reporting to work under the influence of alcohol, in violation of its policy.
Here, [E]mployer discharged [C]laimant for reporting to work under the influence of alcohol, in violation of its policy. The Pennsylvania courts have held that a deliberate refusal to comply with an employer's policy is willful misconduct. If the employer proves that the claimant knew the policy and violated it, then the burden shifts to the claimant to prove good cause for the violation or that the policy was unreasonable. Through
credible testimony and documentary evidence, [E]mployer established that [C]laimant knew its policy.Bd. Op. at 2.
The president credibly testified that [C]laimant reported to work showing signs of being under the influence of alcohol: smelling of alcohol, staggering, slurring his speech, and having glassy eyes. The president also credibly testified that, when confronted, [C]laimant did not deny being drunk. [C]laimant admittedly consumed nine beers the night before and then apologized in a voicemail message, stating, 'I didn't mean to screw up, like, can you give me a break? ... I'm not drinking no more.' Based on the entire record, the Board concludes that that [C]laimant reported to work under the influence of alcohol, in violation of [E]mployer's policy, and presented no good cause for his condition.
Shortly thereafter, Claimant filed a request for reconsideration with the Board. About a week later, the Board notified Claimant of its receipt of his request and informed him he had 30 days to appeal the Board's merits order to this Court regardless of his filing of the request for reconsideration. The Board denied Claimant's request for reconsideration (reconsideration order) on August 15, 2014.
On August 20, 2014, five days after the expiration of the 30-day appeal period from the Board's merits order, Claimant filed a petition for review with this Court. In response, the Board filed an application to quash Claimant's appeal, asserting it was untimely. A single judge of this Court denied the Board's application, explaining that, although Claimant's appeal from the Board's merits order was untimely, Claimant timely filed his appeal within 30 days of the Board's reconsideration order. Claimant's appeal is now before us for disposition.
On appeal, Claimant disputes the Board's determination that he committed willful misconduct by violating Employer's policy prohibiting reporting to work under the influence of alcohol. Claimant argues he did not report to work under the influence of alcohol, and he did not admit to doing so. He further asserts he had good cause for violating Employer's policy because, if Employer detected the smell of alcohol on Claimant it was from the night before, and he made Employer aware he consumed alcohol the night before he reported to work.
The Board responds that Claimant's petition for review may have been timely filed from the Board's reconsideration order, but it did not mention the reconsideration request. The Board asserts Claimant's brief only nominally references his reconsideration request, without development. Because this challenge was not properly raised in his petition for review and developed in his brief, it is waived.
Even considering a challenge to the Board's reconsideration order, Claimant has not shown the Board abused its discretion, as required to support reversal of the Board's order. Rather, Claimant's reconsideration request merely disputed the Board's credibility determinations, and complained about his non-legal representative, despite not referencing his representative at the hearing or on appeal to the Board. Credibility determinations and untimely procedural objections cannot serve as the bases for a grant of a reconsideration request. Thus, the Board maintains, its order denying Claimant's request for reconsideration must be affirmed.
Previously, where a petitioner did not timely appeal an agency's merits order, but his appeal was timely as to the agency's denial of his request for reconsideration, this Court explained:
Pa. R.A.P. 1512(a)(1) provides that a petition for review of a quasi-judicial order must be filed within 30 days of its entry. [The petitioner's] petition for review was filed 10 weeks after the merits order. The filing of a petition for reconsideration does not operate to extend the thirty-day appeal period. Muehleisen v. State Civil Serv. Commn., 443 A.2d 867 (Pa. Cmwlth. 1982), aff'd, 501 Pa. 335, 461 A.2d 615 (1983).Fleeher v. Dep't of Transp., Bureau of Driver Licensing, 850 A.2d 34, 36 (Pa. Cmwlth. 2004).
Muehleisen is instructive. In Muehleisen, the petitioner filed a petition for reconsideration one week after a commission denied his appeal. The petitioner, like [the petitioner] here, also filed a petition for review with this Court more than 30 days after the commission issued its original decision. Subsequently, the commission denied the petition for reconsideration. This Court held that when a petition for review is filed more than thirty days beyond the date of the commission's decision, in violation of Pa. R.A.P. No. 1512(a), we may not review the merits of the initial adjudication and order, and our review is limited to the denial of the petition for reconsideration.
As in Muehleisen, the petition for review here was not filed within 30 days of the merits order. Therefore, we do not review the merits order. Our review is limited to [the agency's] denial of reconsideration.
Here, it is undisputed that Claimant did not file his petition for review to this Court within 30 days of the merits order. Thus, we do not review the merits order. Id. Instead, our review is limited to the Board's denial of reconsideration. Id.; see McGinnis v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2171 C.D. 2012, filed September 13, 2013), 2013 WL 5210008 (unreported), appeal denied, 85 A.3d 485 (Pa. 2014) (where claimant did not timely appeal Board's merits order, but her appeal was timely as to Board's denial of reconsideration, this Court limited the issue for review to whether Board abused its discretion in denying reconsideration).
In his uncounseled petition for review and brief to this Court, Claimant presents no clear, developed argument that the Board abused its discretion in denying his request for reconsideration. Thus, Claimant waived this issue. See Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998) (failure to develop issue in appellate brief results in waiver); Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608 (Pa. Cmwlth. 2006) (issues not contained in petition for review or fairly comprised therein are deemed waived).
Nevertheless, even if properly preserved, we would discern no abuse of discretion in the Board's denial of Claimant's request for reconsideration. The Board's regulations provide that reconsideration will be granted "only for good cause in the interest of justice without prejudice to any party." 34 Pa. Code §101.111(b). "In determining whether 'good cause' exists, the [Board] must consider whether the party requesting reconsideration has presented new evidence or changed circumstances or whether [the Board] failed to consider relevant law." Laster v. Unemployment Comp. Bd. of Review, 80 A.3d 831, 834 (Pa. Cmwlth. 2013) (quoting Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779 (Pa. Cmwlth. 1999)).
Further, where a party's reconsideration request does not allege a change of circumstance, seek to introduce new evidence that was unavailable at the time of the hearing, or articulate any legal theory that the Board did not consider in its initial decision, but rather "merely reargue[s] its case before the [Board] ... [there] is not 'good cause' for granting reconsideration." Id. (citing Bushofsky v. Unemployment Comp. Bd. of Review, 626 A.2d 687, 690 (Pa. Cmwlth. 1993) (reconsideration is properly denied where the petitioner seeks to introduce "the evidence already offered"); Grcich v. Unemployment Comp. Bd. of Review, 440 A.2d 681, 682-83 & n. 1 (Pa. Cmwlth. 1982) (Board improperly granted reconsideration and reversed its prior order where "the only additional factual elements contained in the record" after the Board's initial decision were two employer letters asserting the Board "'completely ignore[d] the testimony of every witness except [claimant]'" and committed other improprieties) (quoting the record); see also Ensle, 740 A.2d at 779-80 (Board may not grant reconsideration merely to revisit credibility issues).
Here, our review of Claimant's uncounseled request for reconsideration to the Board reveals Claimant did not allege a change of circumstance, seek to present new evidence that was unavailable at the time of the hearing, or articulate any legal theory that the Board did not consider in its initial decision. See Certified Record, Item #15. Rather, in his request for reconsideration Claimant primarily sought to reargue his case to the Board. Essentially, he challenged the Board's resolution of evidentiary conflicts and witness credibility. Id. He also disputed the Board's determination that his behavior constituted willful misconduct. Id. None of these claims constitute the requisite good cause justifying the Board's grant of reconsideration. Laster; Ensle; Bushofsky; Grcich; McGinnis. Thus, even if Claimant properly preserved an argument as to the Board's reconsideration order, no abuse of discretion is apparent in the Board's denial of reconsideration. Accordingly, we affirm.
While Claimant's reconsideration request and petition for review briefly challenged the assistance he received from a certified legal intern at the referee's hearing, a certified legal intern is not an attorney licensed to practice law in Pennsylvania. Further, "[t]he substantive due process right to effective assistance of counsel has never been extended to civil or administrative proceedings, but rather is limited to criminal prosecutions." Rosenthal v. State Bd. of Pharmacy, 457 A.2d 243, 245 (Pa. Cmwlth. 1983) (citing Johnson v. Workmen's Comp. Appeal Bd., 321 A.2d 728 (Pa. Cmwlth. 1978)). Thus, this argument lacks merit.
In any event, even if Claimant timely appealed the Board's merits order, we could afford him no relief. The Board is the ultimate fact-finder, empowered to determine all matters of witness credibility and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338 (Pa. Cmwlth. 2008). Further, it is irrelevant whether the record contains evidence that would support findings other than those made by the Board; the proper inquiry is whether the evidence supports the findings actually made. Id.
Here, the record adequately supports the Board's findings that: Claimant was aware of Employer's policy prohibiting reporting to work under the influence of alcohol; when Claimant reported to work on January 18, 2014, he smelled of alcohol, staggered and had slurred speech and glassy eyes; and, Employer discharged Claimant for violating its policy. Certified Record, Item #11, Referee's Hearing, Notes of Testimony, 4/8/14, at 5 (Claimant's testimony), 68, 11, 13 (Employer's president's testimony); Ex. E1 at 6 (Employer's policy prohibiting employees from reporting to work under the influence of alcohol, which may be established by "observation of impairment of physical or mental ability," including, "slurring of speech, difficulty in maintaining balance, etc."); Ex. E2 (Claimant's signed acknowledgement of and agreement to comply with Employer's policy). In turn, these findings support the Board's determination that Claimant committed willful misconduct. See Lindsay v. Unemployment Comp. Bd. of Review, 789 A.2d 385 (Pa. Cmwlth. 2001) (holding that evidence of claimant's odor of alcohol and glassy eyes is sufficient to support a finding that claimant was under the influence of alcohol in violation of employer's policy); Klink v. Unemployment Comp. Bd. of Review, 289 A.2d 494 (Pa. Cmwlth. 1972) (holding that evidence of claimant's odor of alcohol while soliciting orders from customers is sufficient to support a finding of willful misconduct).
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 20th day of February, 2015, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge