Opinion
No. 2033 C.D. 2011
08-10-2012
Teresa A. Greenway, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Teresa A. Greenway (Claimant) petitions this Court for review of the Order of the Unemployment Compensation Board of Review (Board) that reversed a decision of an Unemployment Compensation Referee (Referee) and found Claimant ineligible for unemployment compensation (UC) benefits. Claimant argues that the Board erred because it relied on hearsay evidence in determining that she violated Employer's policy, which constituted willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law). Because the Board appears to have considered hearsay evidence in rendering its credibility determinations, we vacate the Board's Order and remand this matter to the Board to make findings based only on admissible evidence.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides that an employee shall be ineligible for compensation for any week "[i]n which h[er] unemployment is due to h[er] discharge or temporary suspension from work for willful misconduct connected with h[er] work." Id.
Claimant was employed as a bus driver by East Stroudsburg Area School District (Employer). By letter dated October 9, 2009, Employer notified Claimant that it had been informed that there had been a traffic incident on September 24, 2009 involving Claimant's school bus and a motor vehicle at the intersection of Beartown Road and State Route 447. The letter informed Claimant that, in accordance with Section "K" of Employer's Handbook, she was clearly required to report this incident to Employer as soon as possible. The letter further stated that, if a school bus driver is issued a citation and found guilty, Section "W" of the Handbook provided for immediate termination from employment. On October 13, 2009, Employer informed Claimant that she was being suspended, with pay, pending the outcome of its investigation. (Employer Separation Information, R.R. at 1A-2A, 5A.)
Pending Claimant's appeal after a magisterial district judge (MDJ) found Claimant guilty of a traffic violation on November 10, 2009, Employer suspended Claimant without pay, effective November 16, 2009. (Letter from Employer to Claimant, (November 18, 2009), R.R. at 21A.) Claimant timely appealed her conviction to the Monroe County Court of Common Pleas (trial court).
Claimant filed for benefits with the Scranton UC Service Center (Service Center) after she was suspended without pay. (Claim Record, R. Item 1.) The Service Center determined that Claimant was eligible for benefits, noting that there was conflicting information, and that "[E]mployer ha[d] not shown that [C]laimant was involved in the incident that caused her separation." (Notice of Determination at 1, R.R. at 30A.) Employer appealed and, on February 18, 2010, a hearing was held before a Referee at which Claimant and Employer's Director of Transportation testified.
At the hearing, Employer introduced into evidence the Commonwealth of Pennsylvania Police Crash Reporting Forms, consisting of six pages (Police Report). (Referee Hr'g Tr. at 3, R.R. at 52A-53A; Police Report, R.R. at 11A-16A.) Claimant's counsel objected to the Police Report as hearsay because he did not believe that anyone from law enforcement would be present at the hearing to authenticate the Police Report. (Referee Hr'g Tr. at 3, R.R. at 53A.) The Referee overruled this objection and entered the Police Report into the record over the objection of Claimant's counsel. (Referee Hr'g Tr. at 3, R.R. at 53A.) The Police Report provides that: a Barrett Township police officer was dispatched at 4:00 p.m. and arrived at the intersection of Beartown Road and SR447 at 4:15 p.m. on September 24, 2009; Claimant was the driver of vehicle #1, the school bus, and the driver of vehicle #2 (Driver) was identified; Claimant made an improper or careless turn; Driver stated that Claimant pulled out from Beartown Road in front of her vehicle, causing it to go off the road to avoid hitting the school bus; a witness to the incident (Witness) indicated that she was stopped behind the school bus and watched as it turned onto SR447 into vehicle #2's travel lane and, from her view, believed that the school bus struck vehicle #2; the police officer noted that, in his view, the school bus pulled into the southbound lane, causing vehicle #2 to go off the road and hit an embankment, resulting in moderate damage to the front of the vehicle, but the school bus sustained no damage; the Driver declined medical treatment, but her vehicle was towed. (Police Report, R.R. at 11A-16A.)
Employer presented the testimony of its Director of Transportation, but did not present the testimony of the police officer to authenticate the Police Report, Driver, or Witness. Asked when she alleged that this accident occurred, the Director of Transportation stated "I didn't, according to them it was on September 24, 2009." (Referee Hr'g Tr. at 5, R.R. at 55A.) The Director of Transportation admitted that she was not present when the alleged accident occurred and she would not know what actually had occurred. (Referee Hr'g Tr. at 8, R.R. at 58A.)
Claimant testified that, to her knowledge, she was not involved in an incident or accident on September 24, 2009. Claimant stated that, while working for Employer, she had never had any traffic tickets, incidents, or prior discipline. Claimant drew a diagram of her interpretation of what happened at the Beartown intersection. She indicated that the intersection was dangerous because: southbound traffic comes around a turn about one-half mile prior to the intersection; there is a dip in the road; and when stopped on Beartown Road, foliage obscures one's vision of approaching traffic from SR447. Claimant explained that there is a stop sign on Beartown Road, but none on SR447, and SR447 has a non-posted speed limit of 45 miles per hour. Claimant stated that, on September 24, 2009, she proceeded towards the intersection to get a better view, looking to her left and right, saw a pickup truck about one-half mile away that appeared to be holding traffic back, and she proceeded to slowly make her turn because the bulkiness of the school bus required her to inch out into the intersection. Claimant testified that, as she made the left turn, she observed a vehicle on the side of the road and stayed close to the double yellow line to give that vehicle room. Claimant stated that she glanced in her right mirror to ensure she was not contacting the vehicle and saw that the driver was out of her vehicle on her cell phone. Claimant testified that the driver did not attempt to communicate with Claimant in any way, and she assumed the driver was having mechanical problems and was on the phone in an attempt to resolve those problems. Claimant further testified that she did not see any police cars in the area, did not hit any vehicle or receive any traffic tickets or citations that day, but acknowledged that she did receive a ticket in the mail on October 8, 2009. (Referee Hr'g Tr. at 11-18, R.R. at 61A-68A.)
By decision and order issued March 1, 2010, the Referee affirmed the Service Center's determination. (Referee Decision/Order at 2.) The Referee found, among other things, that Claimant was not aware that an accident had occurred, and Employer provided no evidence of willful misconduct. (Referee Findings of Fact (FOF) ¶¶ 4, 7.) On March 3, 2010, Employer petitioned for appeal to the Board with a request that the Board hold the case in abeyance until a final disposition was reached on the traffic citation then on appeal with the trial court. (Petition for Appeal at 2, R.R. at 43-44A.) Claimant objected to the matter being held in abeyance and requested a copy of the transcript and exhibits from the Referee's hearing. (Letter from Claimant to the Board, (March 24, 2010), R.R. at 46A.) The Board sent letters to Claimant and Employer stating that it was enclosing the record and granted permission for Employer to file a brief with the Board. (Letters from the Board to Claimant and Employer, (April 6, 2010), R.R. at 48A-49A.) On April 9, 2010, the Board determined that another hearing in this matter should be scheduled after the final disposition of Claimant's appeal to the trial court. (Board Memorandum to Referee, April 9, 2010, R.R. at 127A.) By Order dated April 15, 2010, the Board remanded this case to a Referee for the parties to provide testimony and evidence regarding the trial court's disposition of Claimant's traffic citation. (Board Remand Order, R.R. at 128A.)
The year of this letter appears to have been erroneously typed as 2009. The Board stamped it received on March 26, 2010.
On September 21, 2010, a second Referee held a remand hearing. At the remand hearing, Employer again presented the testimony of its Director of Transportation, who identified documents from the trial court's Summary Appeal Docket (Docket), which the Referee entered into the record. (Remand Hr'g Tr. at 5-7, R.R. at 151A-53A.) The Docket provided that on, June 23, 2010, the trial court found Claimant guilty of violating Section 3322 of the Vehicle Code, 75 Pa. C.S. § 3322. (Docket, R.R. at 163A-65A.) The Director of Transportation testified that the incident for which Claimant was found guilty was the same incident that caused Claimant to be separated from her employment that was at issue in the first UC hearing. The Director of Transportation further testified that Claimant had been suspended without pay when Claimant filed her appeal with the trial court after which Claimant filed for UC benefits. (Remand Hr'g Tr. at 6-8, R.R. at 152A-54A.) Next, Claimant testified that: she received the citation for the traffic violation in her mail on October 8, 2009; was found guilty by the MDJ; the fine imposed by the MDJ was suspended pending her appeal to the trial court; and, after the trial court found her guilty, Employer discharged her. (Remand Hr'g Tr. at 8-14, R.R. at 154A-60A.)
Section 3322 of the Vehicle Code provides:
The driver of a vehicle intending to turn left within an intersection or into an alley, private road or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction which is so close as to constitute a hazard.75 Pa. C.S. § 3322.
Claimant requested a copy of the transcripts from both Referees' hearings and notified the Board that she intended to request oral argument and/or the filing of a brief. (Letter from Claimant to the Board, (October 13, 2010), at 1, R.R. at 182A.) On October 20, 2010, the Board sent Claimant a copy of the transcript and exhibits from the September 21, 2010, remand hearing. (Letter from Board to Claimant, (October 20, 2010), R.R. at 183A.)
On October 21, 2010, the Board reversed the Referee's decision and found Claimant ineligible for benefits under Section 402(e) of the Law. In doing so, the Board issued its own findings of fact and conclusions of law. The Board found that: "[C]laimant was last employed as a bus driver" for Employer "from July 1, 2009 to October 13, 2009"; "[E]mployer's policy requires that an employee involved in an accident must report it to Employer and that any employee who receives a citation and is convicted will be terminated"; Claimant was aware of this policy; Claimant caused an accident when "she did not properly yield to traffic" and ran another driver off the road; "[C]laimant did not inform [E]mployer of the accident"; an MDJ found Claimant guilty on November 10, 2009; Claimant appealed the MDJ's decision; and the trial court convicted Claimant of a violation of 75 Pa. C.S. § 3322 for her "vehicle turning left." (Board 2010 FOF ¶¶ 1-9.) Based on the above findings, the Board concluded that Claimant violated Employer's known policy when she received a citation, failed to report it to Employer, and was convicted. The Board rejected Claimant's contention that she should not have been found ineligible for UC benefits because her conviction was stayed pending her appeal, was ultimately upheld, and her separation was based upon her violation of Employer's policy.
On October 28, 2010, Claimant sent a letter to the Board which acknowledged receipt of the transcript and exhibits from the September 21, 2010, remand hearing, but requested the transcript and exhibits from the first Referee hearing held on February 18, 2010, advising the Board that she had not received them. (Letter from Claimant to the Board, (October 28, 2010), R.R. at 189A.) The Board sent the requested first Referee hearing record to Claimant on November 2, 2010. (Letter from Board to Claimant, (November 2, 2010), R.R. at 190A.) On November 5, 2010, Claimant filed a request for reconsideration with the Board in an affidavit stating that Claimant was denied due process when she was deprived of the opportunity to submit a written brief because she did not have a complete copy of the record until after the Board's unfavorable decision was rendered. (Claimant's Request for Reconsideration, R.R. at 192A-98A.) On November 22, 2010, the Board reopened the matter to allow the submission of Claimant's brief and indicated that, after reviewing the brief, a new decision may be issued. (Board Ruling on Request for Reconsideration, R.R. at 201A.) Claimant submitted a brief to the Board on December 7, 2010.
On September 30, 2011, the Board issued a new Decision and Order which again found Claimant ineligible for benefits pursuant to Section 402(e) of the Law. (Board 2011 Decision/Order at 3.) The Board made new findings of fact, as follows:
1. The claimant was last employed as a bus driver by East Stroudsburg Area School District from July 1, 2009, until October 13, 2009, at a final hourly rate of $13.06.
2. The employer's policy requires an employee who is involved in an accident to report it to the Director of Transportation as soon as possible.
3. The employer's policy also provides that any employee who receives a citation that goes to court and is convicted will be terminated.
4. The claimant was aware, or should have been aware, of the employer's policies, having signed an acknowledgement that she received a copy of the 2009-2010 Bus Drivers' Handbook containing the rules.
5. On September 24, 2009, the claimant caused an accident wherein she did not properly yield to traffic, running another driver off of the road.
6. The claimant did not inform the employer of the accident.
7. On November 10, 2009, the claimant was convicted by a local magistrate of a traffic violation related to the incident on September 24, 2009.
8. The claimant filed an appeal of the magistrate's decision.
9. Because the claimant was in the process of appealing her decision, the employer suspended her without pay until the resolution of her appeal.(Board 2011 FOF ¶¶ 1-10.) The Board's 2011 Decision and Order mirrored its 2010 Decision/Order, adding only an expanded statement of the procedural history of the matter and the statement that "[i]n light of these convictions, the Board does not find credible [C]laimant's conflicting testimony that she was not aware that she was involved in an accident on September 24, 2009." (Board 2011 Decision/Order at 3.)
10. On or about June 25, 2010, the claimant was again convicted in the Monroe County Court of Common Pleas for "vehicle turning left," pursuant to 75 Pa. C.S. § 3322, as a result of the incident on September 24, 2009.
Claimant now petitions this Court for review. Claimant argues that: (1) Claimant's violation of Employer's policies as a result of her conviction does not constitute willful misconduct under the Law; and (2) the Board's findings that Claimant was involved in an accident and did not timely report the accident were based upon inadmissible hearsay evidence.
This Court's review is limited to determining whether the Board's adjudication is in violation of constitutional rights, an error of law was committed, or the factual findings are not supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002).
We have reordered and consolidated Claimant's arguments. --------
Section 402(e) of the Law provides that a claimant will not be eligible for unemployment compensation when "h[er] unemployment is due to h[er] discharge or temporary suspension from work for willful misconduct connected with h[er] work." 43 P.S. § 802(e). Although the term "willful misconduct" is not defined in the Law, the courts have defined it as:
a) wanton or willful disregard for an employer's interests; b) deliberate violation of an employer's rules; c) disregard for standards of behavior which an employer can rightfully expect of an employee; or d) negligence indicating an intentional disregard of the employer's interest or an employee's duties or obligations.Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). "[W]hether the actions of an employee constitute willful misconduct is a question of law that is subject to" our review. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). An employer, seeking to prove willful misconduct by showing that the claimant violated the employer's rules or policies, must prove the existence of the rule or policy and that the claimant violated it. Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 369 (Pa. Cmwlth. 2008). "Once an employer has met its burden, however, the burden then shifts to the claimant to show good cause as justification for the conduct considered willful." McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993).
Here, Employer argues that Claimant's violation of Employer's known policy, including her failure to report the accident when it occurred and the conviction for the traffic citation, constituted willful misconduct. However, Claimant contends that she cannot be found to have violated Employer's policy that she should have reported an accident when she was not aware that an accident had occurred. Claimant maintains that the only evidence of an accident is the Police Report, which is inadmissible hearsay, and cannot be used to substantiate the factual findings of the Board.
In Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976), this Court held that "[h]earsay evidence, properly objected to, is not competent evidence to support a finding of the Board," although "[h]earsay evidence, admitted without objection, will be given its natural probative effect and may support a finding of the Board, if it is corroborated by any competent evidence in the record, but a finding of fact based solely on hearsay will not stand." (Emphasis in original). "Hearsay is defined as an out-of-court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement." Bailey v. Unemployment Compensation Board of Review, 597 A.2d 241, 244 n.3 (Pa. Cmwlth. 1991) (citation omitted).
At the commencement of the first Referee's hearing, Claimant's counsel objected to the Police Report as hearsay, but the Referee overruled the objection and entered the Police Report into the record. (Referee Hr'g Tr. at 3, R.R. at 53A.) However, the hearing concluded without Employer presenting any first-hand testimony about an accident or any testimony to authenticate the Police Report, which was the only evidence that an accident had occurred. Therefore, because the Police Report is an out-of-court statement offered in court to prove the truth of the matter asserted therein, the Police Report is hearsay. Bailey, 597 A.2d at 244 n.3. In Claimant's brief to the Board, Claimant again raised the hearsay issue and argued that the Board should not rely on the Police Report as evidence of what happened:
Perhaps the Board relied on the police reports, which the employer submitted to the Service Center (at the start of the unemployment proceedings). At the hearing, however, counsel for [Claimant] objected to the police reports as uncorroborated hearsay (the police officer did not testify at the hearing). See Transcript 1, at 2-3. Hearsay evidence, when objected to, cannot be relied upon in an unemployment proceeding. See Myers [v. Unemployment Compensation Board of Review, 533 Pa. 373, 377,] 625 A.2d 622 [,] 625 [(1993)]. The Board therefore cannot rely on the police reports for evidence regarding what happened at the Beartown Intersection.(Claimant's Br. to the Board at 11 n.6, R.R. at 215A.) The Board does not address whether the Police Report was hearsay in its decision, and determined that Employer had established that Claimant violated its known policy as a result of her convictions by the MDJ and the trial court. The Board states that "[i]n light of these convictions," it does not find credible Claimant's "conflicting testimony that she was not aware that she was involved in an accident." (Board 2011 Decision/Order at 3) (emphasis added). It, thus, appears that the Board may have considered the hearsay evidence in making its credibility determination, as a result of which the Board found Claimant ineligible for UC benefits pursuant to Section 402(e) of the Law. (Board 2011 Decision/Order at 3.)
Because the Board is the ultimate fact finder, it is entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 277, 501 A.2d 1383, 1388 (1985). The Board is also empowered to resolve conflicts in the evidence. DeRiggi v. Unemployment Compensation Board of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Moreover, "it is not this court's function to balance th[e] evidence. Questions of credibility and the resolution of evidentiary conflicts are within the sound discretion of the Board. . . ." Peak, 509 Pa. at 276-77, 501 A.2d at 1388. We, therefore, will vacate the Order of the Board and remand this case to the Board to review the record without consideration of the hearsay evidence and to make its credibility determinations based on the admissible evidence of record.
/s/ _________
RENÉE COHN JUBELIRER, Judge Judge McCullough dissents. ORDER
NOW, August 10, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby VACATED and this matter is REMANDED for proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/ _________
RENÉE COHN JUBELIRER, Judge