Opinion
No. 2368 C.D. 2010
07-20-2011
Panther Expedited Services, Inc., Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Panther Expedited Services, Inc. (Panther) challenges the order of the Unemployment Compensation Board of Review (Board) that denied Panther's request to reinstate its appeal.
On October 26, 2009, the Unemployment Compensation Service Center determined that Panther was the employer of Edward T. Kalinowski (Claimant). Also, on October 26, 2009, the Unemployment Compensation Service Center determined that Claimant was employed by two other entities. Panther appealed. A hearing was scheduled for February 23, 2010. On February 23, 2010, Panther requested permission to withdraw its appeal. On February 24, 2010, the referee granted Panther's request. On March 10, 2010, Panther sought to reinstate its appeal. Panther submitted an evidentiary affidavit in which David A. Ruiz (Attorney Ruiz), an attorney with the Ohio law firm of Calfee, Halter & Griswold (Calfee), which represented Panther, stated:
8. Before the Hearing on the Appeal began, the hearing Referee, Verna R. Thomas, asked what determination Panther was appealing.
9. I stated that Panther was appealing the October 26th Notice that incorrectly determined that Panther was Claimant's employer. I further stated that Panther intended to present witness testimony and documentary evidence to demonstrate that Claimant was not an employee of Panther and that Panther was accordingly not responsible for the payment of his unemployment benefits.
10. Ms. Thomas stated that she wrote the October 26th Notice, and responded to Panther's concerns regarding the October 26th Notice by stating that is not what the October 26th Notice states.
11. Ms. Thomas stated that the October 26th Notice does not state that Claimant is an employee of Panther and does not state that Panther is responsible for his unemployment benefits. She again asked what we were appealing.
12. I explained that the content of the October 26th Notice suggests that Panther was found to be Claimant's employer and that the Unemployment Compensation office had remanded the matter for a determination of Claimant's employer.
13. Ms. Thomas stated that the October 26th Notice Panther received was a form document that frequently creates a misunderstanding for recipients because it is not clear; and she stated that the remand was an administrative oversight.
14. Ms. Thomas then stated that she already determined that Claimant was not an employee of Panther (because, for example, she said the facts on file stated that Panther did not provide him with a 1099 and it had no control over him). Ms. Thomas stated that it was not necessary for Panther to proceed with the Appeal because based upon her prior determination Panther was in no way
responsible for the payment of Claimant's unemployment benefits.Evidentiary Affidavit, March 10, 2010, Paragraph Nos. 8-17 at 2-3; Reproduced Record (R.R.) at 109a-110a.
15. Ms. Thomas then stated that Panther could withdraw its Appeal or proceed with the Hearing, but that neither action would alter her prior decision.
16. In reliance on Ms. Thomas' statements regarding the October 26th Notice as well as her verbal statements that Claimant was not an employee of Panther and that Panther was not responsible for the payment of Claimant's unemployment benefits, Panther elected not to proceed with the Hearing and agreed to withdraw the Appeal.
17. I left the Hearing with the impression that Panther would receive a subsequent order that stated Claimant was not an employee of Panther and that Panther was not responsible for the payment of his unemployment benefits.
The Legal Department of the Board directed the referee to conduct a remand hearing to allow Panther to offer testimony and evidence on why it withdrew its original appeal and to determine whether the Board should vacate the referee's order which granted Panther's request to withdraw.
The referee conducted a remand hearing on May 19, 2010. Attorney Ruiz testified concerning the February 23, 2010, scheduled hearing. Attorney Ruiz's testimony was consistent with his affidavit.
On June 11, 2010, the Board's legal department directed the referee to schedule another hearing to further establish why Panther withdrew its appeal. The legal department directed the referee to obtain answers to the following questions:
1.) Other than the Department of Labor and Industry's October 26, 2009 order granting the claimant benefits pursuant to Section 402(h) of the Law, is there another notice(s) that led Panther to believe that the Department determined that the claimant was not its employee? If so, Panther should present copies of that notice(s) for the Board to review.Legal Department Memorandum, June 11, 2010, at 2; R.R. at 136a.
2.) Panther's witness indicated that there was a notice in 'workers [sic] compensation' that made it difficult for outsiders to understand what [sic] the claimant was allegedly not its employee. What did that determination(s) state? Who issued it? When? Panther should present copies of the determination(s) if available.
3.) What in the Department's October 26, 2009 order led to Panther's confusion that the claimant was not deemed an employee of Panther pursuant to Section 402(h) of the Law?
4.) What exactly was said by the Referee that led Panther's representative to believe that if it chose to withdraw its appeal a new decision, other than the one already issued by the Department, would be issued? When was this said?
On August 10, 2010, a different referee, Referee Carolyn Corry (Referee Corry) conducted the remand hearing by telephone. During the hearing it was discovered that Employer did not receive the list of questions that the Board wanted to have answered. The questions were to be attached to the remand order but were not. The hearing was rescheduled for August 24, 2010.
At the hearing on August 24, 2010, Nathan Wheatley (Wheatley), an attorney with Calfee, testified that Panther received three different notices of determination which listed three different employers including Panther as Claimant's employers. Notes of Testimony, August 24, 2010, (N.T.) at 7; R.R. at 163a. Wheatley testified that these notices were part of the confusion that caused Panther to appeal the determination. N.T. at 8; R.R. at 164a. Wheatley testified that after the notice of determination was issued, Panther received a notice from the Pennsylvania Department of Labor and Industry Bureau of Workers' Compensation (Bureau) which stated that the Bureau learned that Panther was an employer in Pennsylvania and sought Panther's Certificate of Workers' Compensation insurance. N.T. at 10; R.R. at 166a. Additionally, Wheatley testified that the notice of determination with respect to Panther was confusing because it determined Claimant was eligible for benefits and seemed to state that Panther was his Employer, but the other two notices found Claimant eligible for benefits and identified different employers. N.T. at 12; R.R. at 168a.
Attorney Ruiz testified that at the February 23, 2010, hearing, Referee Thomas stated that the October 26, 2009, determination did not state that Claimant was an employee of Panther and did not state that Panther was responsible for his unemployment compensation benefits. N.T. at 13-14; R.R. at 169a-170a. Referee Thomas told him that it was not necessary to proceed with the appeal because it had already been determined that Panther was not Claimant's employer. N.T. at 14; R.R. at 170a. After receiving these assurances from Referee Thomas, Panther withdrew its appeal. N.T. at 14; R.R. at 170a.
In an order dated October 4, 2010, the Board denied Panther's request to reinstate its appeal:
WHEREAS, the Board does not find credible PESI's [Panther] assertions that the Referee stated that the claimant was previously determined to not be its employee, or that the Referee had made a decision before taking testimony or evidence; andBoard Opinion, October 4, 2010, at 2; R.R. at 183a.
WHEREAS, the Board does not find credible PESI's [Panther] assertions that the Referee mislead [sic] it into withdrawing its appeal; and
WHEREAS, PESI's [Panther] confusion on whether the claimant was its employee, based on the Department's determination that the claimant had other employers while working for PESI [Panther] is not good cause to permit PESI [Panther] to reinstate its previous appeal; and
. . . .
ORDER
The Board does not find credible PESI's [Panther] assertion credible that the Referee misled it or informed it that she had previously determined the claimant to not be its employee. Further, any confusion PESI [Panther] had because the Department determined that the claimant simultaneously worked for three entities does not constitute good cause to permit another opportunity to present testimony or evidence. PESI [Panther], through its legal counsel, chose to withdraw it original appeal. It has failed to establish good cause to reinstate its previous appeal. Therefore, its request is denied and its appeal is dismissed. (Emphasis in original).
Panther contends that the Board erred as a matter of law when it determined that Panther failed to establish good cause to reinstate its appeal, where the Board's decision was not reasoned and was not supported by substantial competent evidence. Panther also contends that the Board capriciously disregarded credible evidence which supported a finding that Panther established good cause to reinstate its appeal. Panther further contends that the Board denied Panther due process because the referee's misrepresentations induced it to withdraw its appeal, and the Board erred when it failed to make a decision on the merits of the underlying unemployment eligibility determination.
This Court's review in an unemployment case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Initially, Panther contends that the Board decision was not supported by substantial, competent evidence of record. Panther asserts that the evidence it presented was undisputed and established that Panther was induced to withdraw its appeal based on Referee Thomas's assurance that she had already determined that Panther was not Claimant's employer and that it was not necessary for Panther to proceed with its appeal. Panther asserts there is not one scintilla of evidence to rebut any allegation by Panther.
Panther ignores the fact that the Board did not find credible Panther's allegations that misrepresentations by Referee Thomas led Panther to withdraw its appeal. In unemployment compensation proceedings the Board is the ultimate factfinder empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded the evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977). Here, the Board did not find Panther's evidence credible. It is not the function of this Court to reweigh the evidence.
Panther next contends that the Board capriciously disregarded credible evidence of record when it made its decision. Once again, Panther ignores the fact that the Board did not find Panther's evidence credible. The Board is free to reject even uncontradicted evidence. Eduardo v. Unemployment Compensation Board of Review, 434 A.2d 215 (Pa. Cmwlth. 1981).
Panther next contends that the Board's decision must be reversed because Panther was denied its constitutional right to due process. The essential element of due process is notice and an opportunity to be heard. Local 85 of the Amalgamated Transit Union, AFL-CIO v. Port Authority of Allegheny County, 840 A.2d 506 (Pa. Cmwlth. 2004). Panther asserts that because it accepted the assurance of Referee Thomas that Claimant was not a Panther employee it was denied its opportunity to proceed to a hearing on the merits to determine whether Claimant was its employee. However, based upon the findings of the Board Panther had the opportunity to proceed to a hearing but chose to withdraw its appeal.
Finally, Panther contends that the Board's decision must be reversed because the referee breached her duty to reach a decision on the merits. Panther persistently argues that Referee Thomas induced it to withdraw its appeal. Once again, Panther discounts the fact that the Board did not credit its version of the events.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 20th day of July, 2011, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge