Opinion
No. 1131 C.D. 2012
03-12-2013
Jay Leader, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
Jay Leader (Claimant) petitions, pro se, for review of the May 15, 2012 order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision that Claimant is ineligible for benefits pursuant to section 402(e) of the Unemployment Compensation Law (Law). On appeal, Claimant contends that the Board erred in failing to provide a reason for its decision as required by the Department of Labor and Industry's (Department) regulations at 34 Pa. Code §101.88(5) ; in permitting the Pennsylvania State Police (Employer) to file an appeal nunc pro tunc from the local service center's notice of determination; and in concluding that the referee did not violate 34 Pa. Code §101.87 when he considered issues that were not decided by the local service center. Claimant raises only these procedural issues and does not challenge the Board's substantive determination that he is ineligible for benefits. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). Section 402(e) states that an employee shall be ineligible for compensation for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work.
Pursuant to this section, the Board is obligated to provide "reasons for [its] decision." 34 Pa. Code §101.88(5). See 34 Pa. Code. §101.109; McGoldrick v. Unemployment Compensation Board of Review, 526 A.2d 461 (Pa. Cmwlth. 1987).
In general, this provision requires a referee to consider only those issues that were expressly decided by the local service center. 34 Pa. Code §101.87. See Sharp Equipment Company v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002).
From January 1, 2005, to September 22, 2011, Claimant was employed by Employer as a full-time Legal Assistant 2. On September 27, 2011, Claimant filed an application for benefits and stated that he was suspended from work for violating the rules in Employer's "Code of Conduct." On the application form, Claimant provided the local service center with Employer's correct address at 1800 Elmerton Avenue, Harrisburg. (Findings of Fact Nos. 1, 5, 6.)
On November 8, 2011, a member of Employer's human resources department contacted the local service center regarding Claimant's separation of employment forms. The local service center discovered that it sent Employer's separation forms to the wrong address but did not correct its error. Instead, shortly thereafter, on November 16, 2011, the local service center issued a notice of determination finding that Claimant was not ineligible for benefits under section 402(e) of the Law. The local service center sent the notice of determination to Employer, again using the wrong address. (Findings of Fact Nos. 2, 3, 6, 7.)
On November 18, 2011, a human resource analyst for Employer called the local service center to inquire about the status of Claimant's application for benefits. The local service center stated that a determination had been issued granting Claimant benefits and that a copy was mailed to Employer. On December 2, 2011, the analyst contacted the local service center and informed the center that Employer did not receive the determination and that it intended to appeal. The local service center investigated the matter and discovered that the determination had been sent to the wrong address. The local service center then faxed a copy of the determination to Employer. On December 5, 2011, Employer faxed its appeal and the local service center received it on that same date. Pursuant to section 501(e) of the Law, 43 P.S. §821(e), Employer had fifteen days from the date of the determination, or until December 1, 2011, to file an appeal; thus, Employer's appeal was filed untimely. (Findings of Fact Nos. 4, 8-12.)
Before the referee, Employer's witnesses testified to the facts above. Employer's witness also testified that Employer has a Code of Conduct, a harassment policy, and a policy prohibiting workplace violence. Among other things, the Code of Conduct prohibits an employee from possessing a firearm while in Employer's facilities. Employer's witnesses testified that over a period of months, Claimant harassed another co-worker and, on September 21, 2011, brought a 9mm handgun into the workplace and threatened the co-worker with it. On September 22, 2011, Employer suspended Claimant for bringing a handgun into the workplace. Following an internal investigation and hearing, Employer discharged Claimant on February 6, 2012, for violating its Code of Conduct, harassment policy, and policy prohibiting workplace violence. The referee found Employer's witnesses credible and resolved all conflicts in the testimony in Employer's favor. (Findings of Fact Nos. 14-30; Referee's decision at 3.)
Based upon these findings and credibility determinations, the referee concluded that Employer's failure to file a timely appeal was the result of a breakdown in the administrative process and granted Employer the right to appeal nunc pro tunc. The referee further concluded that Claimant's violation of Employer's Code of Conduct constituted willful misconduct rendering Claimant ineligible for benefits under section 402(e) of the Law. The referee declined to address whether Claimant's conduct also violated Employer's harassment and workplace violence policies. (Referee's decision at 3-5.) The Board affirmed, adopting and incorporating the referee's findings of fact and conclusions of law. (Board's decision at 1.)
On appeal to this Court, Claimant first argues that the Board violated 34 Pa. Code §101.88(5), which requires the Board to provide a reason for its decision. However, the referee issued 31 detailed findings of fact and provided comprehensive legal analysis explaining why Employer was entitled to nunc pro tunc relief and why Claimant was ineligible for benefits under section 402(e) of the Law; the Board adopted and incorporated the referee's findings and conclusions as its own; and the Board expressly stated that it considered the entire record and concluded that the referee's decision was proper. We conclude that in affirming, adopting, and incorporating the referee's decision, the Board articulated sufficient reasons for denying Claimant's appeal.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. Because Claimant does not challenge the Board's findings, they are binding upon this Court for purposes of appellate review. Owens v. Unemployment Compensation Board of Review, 748 A.2d 794 (Pa. Cmwlth. 2000). --------
Claimant next asserts that the Board erred in granting Employer the right to appeal nunc pro tunc from the local service center's notice of determination. Claimant contends that Employer did not contest his eligibility for benefits before the local service center and, thus, Employer was not entitled to be served with the determination.
However, Employer never had the opportunity to complete and return the separation forms or to contest Claimant's eligibility because the local service center, although it had Employer's correct address on file, mailed the separation forms and the notice of determination to the incorrect address. The record reflects that Employer acted diligently at all times, and, once it discovered that the local service center sent the notice of determination to the wrong address, Employer stated that it intended to appeal the decision and promptly filed an appeal after receiving the determination. In United States Postal Service v. Unemployment Compensation Board of Review, 620 A.2d 572 (Pa. Cmwlth. 1993), this Court held that an appeal nunc pro tunc will lie where a local service center fails to send a notice of determination to an employer's correct address and the employer files an appeal shortly after receiving the determination. Therefore, we conclude that the Board did not err in granting Employer the right to appeal nunc pro tunc.
Finally, Claimant argues that the Board contravened 34 Pa. Code §101.87 by permitting the referee to consider whether he violated Employer's harassment and workplace violence policies, when the only issue before the local service center was whether he violated Employer's Code of Conduct. Pursuant to section 101.87, a referee cannot consider a legal issue or theory that was not decided by the local service center if the referee's consideration of that issue or theory results in surprise or prejudice to the claimant. Sharp Equipment Company v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002); Hine v. Unemployment Compensation Board of Review, 520 A.2d 102 (Pa. Cmwlth. 1987).
Here, Claimant cannot establish unfair surprise or prejudice. Following its internal investigation, Employer informed Claimant that he was being terminated, among other things, for violating its harassment and workplace violence policies. (Employer's Ex. #7.) More importantly, after concluding that Claimant violated Employer's Code of Conduct by bringing a firearm to the workplace, the referee declined to decide if Claimant violated Employer's other policies. Consequently, the referee never relied upon Employer's harassment and workplace violence policies to find that Claimant was ineligible for benefits, and any consideration by the referee of these policies was harmless.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 12th day of March, 2013, the May 15, 2012 order of the Unemployment Compensation Board of Review is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge