Opinion
No. 2578 C.D. 2010
07-13-2011
Philadelphia Parking Authority, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
Employer, the Philadelphia Parking Authority (Authority), petitions for review of the order of the Unemployment Compensation Board of Review (Board), which affirmed the grant of unemployment compensation benefits to claimant, Reginald Bass-Reid. In doing so, the Board noted that the Authority failed to meet its burden of proving with competent evidence that Bass-Reid engaged in willful misconduct. The questions presented for review are whether: (1) the Board erred in concluding that the Authority failed to meet its burden of proof with respect to willful misconduct; and (2) the referee erred in precluding the Authority from cross-examining Bass-Reid regarding the circumstances surrounding his discharge. We affirm.
According to the evidence of record, Bass-Reid, an Authority coin collector, was terminated from his position in June, 2008, following an investigation by the Inspector General's Office into the Philadelphia Bureau of Administrative Adjudication (BAA), the department responsible for hearing and adjudicating contested parking violations. The investigation revealed that Bass-Reid incurred 43 tickets for various parking violations and each ticket was disposed of or cancelled in Bass-Reid's favor. The Authority's investigation further revealed that Bass-Reid had personal contacts at the BAA. Based upon its investigation, the Authority concluded that Bass-Reid appeared at BAA hearings regarding his parking violations when he was signed in at work and that he used his contacts at the BAA to have his tickets disposed of improperly in his favor. As a result, the Authority charged Bass-Reid with violating numerous work rules set forth in the employee manual, including undermining the credibility or reputation of the Authority, disregarding authority policies and procedures, performing personal work on Authority time, using an employee's position to distort collection of parking revenue and failing to cooperate with an investigation. Bass-Reid was then terminated.
Specifically, Bass-Reid's mother was employed as a "Senior Intake Clerk" for the Authority but worked in the BAA's offices, and he knew several BAA hearing officers.
Bass-Reid was initially denied benefits and following his appeal, a hearing before a referee followed. At that hearing, the Authority presented the testimony of two witnesses, Edward Thornton, its Director of Parking Management, and Michael Leyden, a private investigator for the Authority. Thornton indicated that he was the Step 1 Hearing Officer who heard the grievance filed by Bass-Reid's union following his termination; Bass-Reid and two investigators for the Inspector General's Office testified in connection with that grievance. According to Thornton, the evidence at that hearing demonstrated that 43 tickets issued to Bass-Reid during the period of March 29, 2005, through June of 2008, were either dismissed at a hearing or cancelled by BAA personnel. Thornton also indicated that Bass-Reid admitted at the grievance hearing that he attended some of the ticket hearings but he could not recall which ones and that an attorney appeared on his behalf at other hearings. Although requested, Bass-Reid never provided any proof that an attorney appeared on his behalf at a hearing. Thornton further testified that documentary evidence demonstrated that during two hearings where tickets were dismissed, Bass-Reid was signed-in at work at the time. He further noted that Authority employees are prohibited from conducting personal business during work hours. Thornton admitted, however, that the documentary evidence presented during the hearing before the referee did not indicate that Bass-Reid was actually present at any of the hearings. He further admitted on cross-examination that he lacked any evidence to demonstrate whether an attorney was present at Bass-Reid's hearings.
Apparently, no appearance before a hearing officer is required if a ticket is cancelled.
These hearings were before Hearing Officer Hardy on February 1, 2007, and January 7, 2008.
Next, Thornton testified that witnesses for the Inspector General's Office testified at the grievance hearing that Bass-Reid's mother worked for the Authority as a senior intake clerk and was stationed where BAA hearings occurred. Thornton acknowledged on cross-examination that Bass-Reid's mother did not have authority to directly dispose of tickets. According to Thornton, while BAA hearing officers can cancel tickets, that process usually occurs through the Authority. Thornton further explained that tickets are not cancelled by BAA personnel independently; the ticket must first be brought to someone's attention.
Leyden testified that he interviewed Bass-Reid during the investigation into the BAA. According to Leyden, Bass-Reid stated during his interview that he recalled attending one hearing regarding his parking tickets and in some instances he was found guilty and others he was not. He further indicated to Leyden that he used his debit card to pay his fine. Leyden testified that although he asked Bass-Reid to provide information regarding any payments made, no information was ever provided; Leyden also testified that based upon his review of the Authority's "computer printout reports," he did not find any evidence that Bass-Reid had paid any fines.
According to Leyden, Bass-Reid further indicated that he recalled a hearing with Hearing Officer Hardy, but could not recall the specific date of that hearing. Bass-Reid denied attending hearings on work time; he told Leyden that he either went on a day off or a day he was not required to work due to disability or another "comp day." Bass-Reid admitted to Leyden that he had a friendly relationship with a hearing officer, but indicated that his personal relationship with her did not occur until after the date of his hearings. Finally, Leyden testified that he recommended to the Authority that Bass-Reid be terminated for a lack of candor during the interview. On cross-examination, Leyden admitted that other than Bass-Reid's admission that he recalled attending a hearing before Hardy, he did not have any evidence that Bass-Reid appeared at a hearing(s) while scheduled or signed-in at work. He also admitted that while the BAA has a sign-in sheet, he did not have any evidence that Bass-Reid had signed-in at a hearing before the BAA on a day that he was signed-in and working for the Authority.
Notably, following his cross-examination of the Authority's witnesses, Bass-Reid's counsel stated: "We rest." Hearing of August 17, 2010, Transcript of Testimony at 32. Thereafter, the referee stated: "Let me ask a few basic questions of the Claimant though but if he doesn't testify other than his background information he wouldn't be subject to cross if he don't testify [sic] but I do just want to ask about . . . ." Id. The referee then asked Bass-Reid several questions regarding his employment with the Authority, including whether his position was that of a full-time coin collector, the dates of his first and last days of employment, the final rate of his pay and whether he agreed that the Authority had discharged him. Thereafter, counsel for the Authority sought to examine Bass-Reid. Other than the Authority's reasons for discharge, the referee precluded counsel from questioning Bass-Reid regarding the circumstances of his discharge, and because the Authority had already rested, precluded the Authority from calling Bass-Reid as an adverse witness. Counsel for the Authority objected to the ruling.
Specifically, the Authority was permitted to ask Bass-Reid why he was discharged (to which Bass-Reid referenced a letter he received with a list of reasons) but not what his response was with respect to those allegations. Counsel indicated that he thought such questioning was proper because it was the "circumstances of the discharge." Transcript of Testimony at 35.
Based upon the evidence, the referee found that, while cancellation or dismissal of 43 tickets was suspicious, the Authority's "evidence that the claimant's favorable results regarding his parking ticket appeals are attributable to the claimant's impropriety is scant and requires the Referee to make a further logical leap than [sic] the referee is willing to make." Referee's decision and order at 2. As to whether Bass-Reid used work time to contest his tickets, the referee found that the Authority failed to provide any evidence that Bass-Reid actually attended a hearing during a time when he was signed-in at work. Accordingly, the referee concluded that the Authority failed to demonstrate willful misconduct and granted benefits. On appeal, the Board adopted and incorporated the referee's findings and conclusions and affirmed. The present appeal followed.
The Authority first argues that the Board erred as a matter of law in concluding that Bass-Reid's conduct did not constitute willful misconduct. In making this argument, the Authority recounts the evidence set forth above, arguing that it demonstrates that Bass-Reid used his position and connections at the BAA to secure the cancellation of tickets, and that he attended BAA hearings while working for the Authority, both in violation of established work rules. In further support of its argument, the Authority notes that the BAA does not cancel tickets sua sponte, which supports the conclusion that Bass-Reid contacted BAA personnel and used his position to secure the cancellation of his tickets. The Authority also notes that Bass-Reid never provided proof that an attorney attended a hearing on his behalf.
The issue before us is really one of the sufficiency of the evidence.
There is no dispute that violation of a known work rule without good cause constitutes willful misconduct. It bears repeating, however, that the employer bears the initial burden of proving that the employee engaged in willful misconduct. Dep't of Corr., SCI-Camp Hill v. Unemployment Comp. Bd. of Review, 943 A.2d 1011 (Pa. Cmwlth. 2008).
Here, while we might well have found the facts differently, the Board, as fact-finder, acted within its authority in failing to draw inferences from the circumstantial evidence presented that Bass-Reid actually committed the conduct charged by the Authority. The Board is the ultimate fact finder and we may not superimpose our view of the facts for that of the Board.
Finally, the Authority contends that the referee's refusal to allow it to cross-examine Bass-Reid regarding the circumstances of his discharge results in reversible error. In support of this contention, the Authority cites to, inter alia, Pennsylvania Rule of Evidence 614(a), which provides that the court may, on its own motion, call witnesses and all parties are entitled to cross-examine witnesses so called by the court. Here, the Authority believes that the referee opened the door to cross-examination of Bass-Reid regarding his discharge once he questioned him about it. We find no merit to this contention for several reasons.
First, the argument has been waived as a result of the Authority's failure to raise it in its appeal to the Board. See generally Merida v. Commonwealth, Unemployment Comp. Bd. of Review, 543 A.2d 593 (Pa. Cmwlth. 1988). See also 34 Pa. Code § 101.102 (referencing 34 Pa. Code § 101.81, which requires that an appeal shall contain, inter alia, the "reasons for the appeal"). Second, notwithstanding the aforesaid, the Authority's reliance on Rule 614(a) is misplaced because while reasonable examination and cross-examination shall be allowed in administrative agency hearings, by statute, the technical rules of evidence do not apply. See 2 Pa. C.S. § 505. The referee's authority to question witnesses stems from the regulation appearing at Section 101.21 of Title 34 of the Pennsylvania Code, which governs hearings before referees. That section provides that the referee is authorized to examine parties and their witnesses, and "shall determine the order in which the evidence shall be presented in hearings [and within his or her discretion,] the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights." 34 Pa. Code § 101.21(b). The referee's limitation of cross-examination does not require a vacation and remand absent an abuse of discretion. See generally Subaru of Am., Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 842 A.2d 1003 (Pa. Cmwlth. 2004).
The referee actually has an affirmative obligation to assist an unrepresented claimant in the examination and cross-examination of witnesses in order to develop the facts necessary for a decision. See 34 Pa. Code § 101.21(a) (stating, in pertinent part, "[w]here a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.); Coates v. Unemployment Comp. Bd. of Review, 676 A.2d 742, 744 n.3 (Pa. Cmwlth. 1996).
Here, prior to the Authority's putting on its case and beginning the direct examination of its first witness, the referee sought to elicit the same "background" information at issue here from either Thornton or Leyden in an apparent attempt to verify information provided by the Service Center. Specifically, the referee asked Thornton what Bass-Reid's position was with the Authority, whether it was a full-time position, whether he knew Bass-Reid's final rate of pay and last day of work, and whether he agreed that Bass-Reid had been discharged. See Transcript of Testimony at 7. We do not conclude that such limited inquiry by the referee into the basic background facts needed to issue a decision and order opened the door for the Authority to cross-examine Bass-Reid regarding the very substance of the claim for benefits, especially where the Authority chose not to call Bass-Reid as an adverse witness during its case and Bass-Reid specifically declined to testify on his own behalf and in support of his claim for benefits. Because we conclude that the Authority could have called Bass-Reid before it rested and the referee limited his inquiry into confirming only that Bass-Reid did not dispute that he was discharged, we discern no abuse of discretion in prohibiting cross-examination regarding the circumstances of the discharge in this case.
Indeed, as is often the case, the referee's first finding of fact sets forth Bass-Reid's job title, his first and last day of work and his final rate of pay.
Based upon the foregoing, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 13th day of July 2011, the order of the Unemployment Compensation Board of Review in the above- captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge