Opinion
No. 1986 C.D. 2011
06-05-2012
Little Treasure Day Care Center, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Employer, Little Treasure Day Care Center, petitions for review of the order of the Unemployment Compensation Board of Review, which affirmed the grant of benefits to Carol Riley on the basis that she was not disqualified under Section 402(e) of the Unemployment Compensation Law, 43 P.S. § 802(e) (pertaining to discharge for willful misconduct in connection with employment). Employer argues on appeal that: (1) "[it] was denied the right to a fair and impartial hearing, when the Referee made a determination for Claimant's [benefits] solely on credibility of the witnesses, as opposed to considering the relevant evidence properly entered into the record[;]" and (2) it was denied due process because it was not allowed to present the testimony of all of its witnesses. Because these issues have been waived for purposes of appellate review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Although we affirm the order of the Board based upon waiver, we also summarily note that a brief consideration of the issues raised leads to the same result, that is, the Board did not commit reversible error.
The record reflects that Employer operated a day care center for young children and employed Riley as a teacher. Employer discharged Riley believing that she had violated its rule against leaving children unattended. A hearing regarding Riley's claim for benefits eventually followed. Riley appeared pro se with one witness; Employer appeared with counsel and several witnesses. At counsel's request, the witnesses were sequestered. Employer adduced the testimony of its first witness and following Riley's referee-assisted cross-examination of that witness, the following pertinent exchange occurred between Employer's attorney and the referee:
R: [A]ll right. So, at this point then we'll go back to the Employer. Was - did you want to call your second witness? Does she have anything to add?Hearing of July 6, 2011, Notes of Testimony (N.T.) at 27. Thus, the sequestered witness or witnesses did not testify. Thereafter, after counsel cross-examined Riley following her case-in-chief, the referee asked whether either party had anything else to present. Employer's counsel replied as follows:
[Counsel]: No, I'll not do that.
R: All right. And . . .
[Counsel]: We can go on.
R: [W]as that all of your questions [for Riley]?Id. at 33. The referee ultimately credited Riley's testimony that she did not leave children unattended over that of Employer's witness because the latter admittedly did not personally observe the alleged rule violation. Employer appealed to the Board, which adopted the referee's findings and conclusions and affirmed. This appeal followed.
[Counsel]: Yes. No further questions. Thank you.
R: All right. So, at this point then I'll just ask to check with both sides. Is there anything that wasn't previously addressed from the Employer?
[Counsel]: No.
. . . .
R. All right, then. The hearing is concluded. . . .
We begin by noting that the only issue raised in Employer's petition for review is whether the referee improperly precluded the testimony of its other witnesses. Consequently, any argument regarding the Board's fact-finding and credibility determinations has been waived. See generally Scott v. Unemployment Comp. Bd. of Review, 36 A.3d 643 (Pa. Cmwlth. 2012) (noting that issue not raised in petition for review is waived).
As to the contention that Employer was denied due process because it was not permitted to introduce the testimony of its other witnesses, who allegedly had personal knowledge of the misconduct at issue, the issue has been waived as well by counsel's failure to properly preserve it. According to Employer, during the hearing, "the Referee made it clear in certain ways that she had heard enough evidence to make a ruling with the evidence that was before her, with the testimony that was already presented." Employer's appellate brief at 3 (summary of argument). Contrary to Rule of Appellate Procedure No. 2117(a)(4), Employer does not point in the record to any specific conduct by the referee to substantiate its suggestion that the referee "cut short" the hearing or pressured Employer to truncate the presentation of its case.
Rule 2117(a)(4) provides that the statement of the case shall contain: "A closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found."
Our review of the record reveals only two instances where the referee intervened in order to limit the introduction of irrelevant matters and to keep the hearing moving forward. First, when counsel attempted to adduce testimony regarding unrelated instances of alleged misconduct, such as tardiness, the referee commented that such evidence was unnecessary and further noted that "we're running fairly far behind." N.T. at 18. In addition, after questioning Riley, a pro se claimant, in order to assist in the presentation of her case, the referee stated:
All right. I don't think I have any other questions for you. Is there anything else you wanted to add before we move on? Because there are the two main allegations, and the second one apparently triggered your discharge. . . . Anything you wanted to say specifically about those two allegations is fine. Otherwise, we need to . . . move on.Id. at 31. Other than the above two comments by the referee, which are clearly aimed at keeping the parties' evidence focused on the relevant issues as well as maintaining an orderly and efficient hearing process, there is nothing to suggest that Employer was rushed, the hearing was cut-short, or that the referee refused to permit the testimony of Employer's witnesses. To the contrary, the referee specifically asked whether counsel wanted to present the testimony of the sequestered witnesses, and before closing the hearing, inquired whether she had anything else to add. Counsel declined each time and never sought to present the testimony of additional witnesses or evidence. Counsel also did not raise any objection when the referee concluded the hearing without the testimony of her witnesses. While we conclude that there is nothing to suggest a denial of due process, counsel's failure to raise any objection during the hearing regarding any express or perceived exclusion of her witnesses' testimony waived the right to pursue the issue on appeal. Dehus v. Commonwealth, Unemployment Comp. Bd. of Review, 545 A.2d 434 (Pa. Cmwlth. 1988).
Pursuant to the special rules of practice and procedure governing proceedings before the Board, the hearing tribunal has the authority to determine the order in which the evidence shall be presented at the hearings. 34 Pa. Code § 101.21(b). Moreover, "[w]ithin the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights." Id. --------
Accordingly, the order of the Board is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of June, 2012, the order of the Unemployment Compensation Board of Review is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge