Opinion
No. 664 C.D. 2013
07-10-2015
Springhouse Tavern, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Springhouse Tavern (Employer) challenges the order of the Unemployment Compensation Board of Review (Board), which affirmed the determination of Referee Rodney Dietrich (Referee Dietrich) that Maria Folin (Claimant) was eligible for benefits and not ineligible under Section 402(e) of the Unemployment Compensation Law (Law), relating to willful misconduct. Employer raises two issues on appeal. First, Employer contends that the Board erred when it found that Employer failed to appear at the scheduled hearing before Referee Dietrich on October 9, 2012. Second, Employer contends that the Board erred in awarding Claimant benefits when Claimant was terminated from her job with Employer for disqualifying willful misconduct. For the reasons set forth below, we reverse the Board's decision and remand the matter to the Board for reconsideration.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).
Claimant worked as a server for Employer. Employer discharged Claimant from employment on August 14, 2012. Claimant filed for unemployment compensation benefits. In the Employer Questionnaire, Employer indicated that Claimant was terminated because she called a customer a "bitch." (Reproduced Record (R.R.) at 1a.) The Unemployment Compensation Service Center determined that Claimant was ineligible for benefits under Section 402(e) of the Law. Claimant appealed.
The Notice of Hearing before Referee Dietrich indicated a hearing date and time of Tuesday, October 9, 2012, at 1:15 p.m. The hearing location was identified as 1951 New Hope Street, 2nd Floor, Norristown, PA 19401. (R.R. at 10a.) Referee Dietrich conducted a hearing on that date, indicating on the record that "there were no Employer witnesses present in the waiting area when this hearing was called." (R.R. at 12a.) Referee Dietrich conducted the hearing with only Claimant present and testifying. Claimant denied calling the customer a "bitch." (R.R. at 16a.) Claimant further testified that she believed that she was terminated because the owner of Employer, Kathy Burns (Burns), did not like her. (R.R. at 16a-17a.)
Following the hearing, Burns wrote a letter to Referee Dietrich. Burns indicated that she entered the waiting room for the hearing at 1:08 p.m., and signed in at that time. She reviewed the file. She indicated that three ladies in the office knew she was present and waiting for the hearing and that she never left the waiting room. She heard Referee Dietrich enter the waiting room and call for the Claimant by her name, but he did not mention "vs. Springhouse Tavern" or call Burns by her name. This matter was the last matter on the docket for the day. Burns noted that Claimant also knew that she was in the room, waiting for the hearing, but apparently said nothing to Referee Dietrich when the hearing began. Burns requested a new hearing.
In his Decision/Order, Referee Dietrich determined that Claimant was not ineligible for benefits under Section 402(e) of the Law and reversed the Unemployment Compensation Service Center's determination, reasoning:
Although duly notified of the time, date and place of the scheduled hearing, the employer was not present in the waiting area when this hearing was called. Only present was the claimant, whom [sic] entered the hearing room with the Referee. The Referee was not informed the employer's witness was presented [sic] at the Referee's Office until after the hearing was adjourned. The claimant left the Referee Office at this time. Therefore, the above findings are, therefore, based on the sworn testimony of the claimant and the documentation offered by the Office of Employment Security, which is the only information available to the Referee.
. . . .
In the instant case, the employer was not present at this hearing to offer competent testimony and evidence of record to meet their [sic] burden.
The claimant's own testimony and the documentation presented by the UC Service Center did not support any findings the claimant was discharged for reasons of willful misconduct. Therefore, the employer has failed to meet their [sic] burden and claimant cannot be subject to
a disqualification of unemployment benefits under Section 402(e) of the Law.(R.R. at 21a-22a (emphasis added).)
Employer appealed to the Board and asserted that Burns was present in the waiting room when the hearing took place. As a result, Burns was not given an opportunity to represent Employer's interests during the hearing. The Board remanded for a new hearing to receive testimony and evidence on Employer's nonappearance at the hearing. The Board also authorized the referee to take new or additional testimony and evidence on the merits, but indicated that it would not consider such testimony or evidence if it determined that Employer did not have good cause for its nonappearance at the prior hearing. The Board offered additional guidance to the referee on remand:
The Referee should try to limit the introduction of repetitious or irrelevant matters. Answers to the following questions . . . would be helpful:(R.R. at 35a (emphasis added).)
1. Did the employer indicate its arrival on the Referee's sign-in sheet? If available, the Referee should please provide a copy of the sheet.
2. Did the Referee call the case? If so, why did the employer remain in the waiting room?
3. Did the employer speak with the receptionist in the Referee's Office before the hearing ended?
Referee Dietrich was not available to conduct the remand hearing. Instead, Referee Abolade Akomolede (Referee Akomolede) conducted the remand hearing. Referee Akomolede first accepted new and additional testimony on the events that led to Claimant's discharge. He then accepted testimony from Burns with respect to the first hearing. Burns testified that upon arriving for the hearing approximately ten to fifteen minutes prior to the scheduled start time, she signed in on the referee's time sheet. (Certified Record (C.R.), Item 16, Notes of Testimony, at 15.) Burns explained why she did not enter the hearing room:
So when Mr. Dietrich [the referee] called her in for the hearing not once did she [Claimant] say Ms. Burns is waiting out in the lobby. When Mr. Dietrich [the referee] came out and called for the hearing he called Maria Folin. I heard him say that. I never heard him say Spring House Tavern, if he did say it. So, I believed at the time that he had some private conversation with Maria first. So, I was waiting in the lobby and waiting patiently to be called. The hearing took place and he spoke with her. He referenced the fact that there was no representation from Spring House Tavern, yet I was sitting there the whole time and Maria knew it. This speaks volumes as to her integrity. She allowed the hearing to go on while I sat there waiting the whole time.
. . . .
So, in addition to that there was Ms. Crawford, who sits in the office out here and Ms. Matecky. They both knew I was there. They both knew I never went to the ladies' room. They knew I was just waiting respectfully because I honestly believed that Mr. Dietrich had, you know, personal questions, whatever. I don't, private questions to ask her first. I don't know. So, I just waited there. And then when Maria came out she looked at me again. She walked right by me, got on the elevator and left. So, I was her Employer. She knows who I am. She heard me say my name. She knew I was there the whole time and she allowed the hearing to go on while I sat there and waited.
. . . .
. . . If he called Spring House Tavern or if he said my name I didn't hear it because he didn't come all the way out into the lobby and I was right around corner there. I was only a few chairs away from Maria. If he had said Spring House Tavern or Kathy Burns I would have jumped up. I've been to these hearings many times, so I know how they go. I, you know, and I know that typically two people are involved. But, when Maria was
there with another man . . . I thought that initially that he might have been her lawyer. So, that lend [sic] . . . credence to the . . . fact that I was thinking that maybe he did have some private questions for her first.(Id. at 16-17.)
Burns testified that she did not approach the office staff to inquire about the status of the hearing. Referee Akomolede asked when she felt something was wrong, to which Burns replied:
When [Claimant] came back out and got on the elevator then Mr. Dietrich [referee] saw me through the window and he opens the window and he says well, what are you here for. And I told him and I said well, I'm Kathy Burns. I signed the roster. I've been sitting here all along waiting to be called. He says, well, the hearing just took place. I . . . was dumbfounded. I said how could it take place without me and I've been sitting here? You didn't call me. . . . I said why didn't you call me? He said that he did. And I said . . if you did you said it very softly because I was sitting right here. I would have heard you. So, then I asked him if he referenced the fact that I was missing in the hearing while [Claimant] was sitting there. He said yes, he did. And I said she didn't tell you I was there the whole time? So, then I asked Ms. Matecky. I said you know I was here the whole time. She said yes. She said yes, you've been here the whole time.(Id. at 17.) In response, Claimant testified that she did inform Referee Dietrich that Burns was in the waiting area. According to Claimant, however, Referee Dietrich responded that he called Burns' name, but she did not come into the hearing room. (Id. at 17-18.) Referee Akomolede concluded the hearing.
The Board's order that is the subject of this appeal followed. The Board adopted the decision of Referee Dietrich, awarding benefits to Claimant. With respect to the evidence adduced at the remand hearing, the Board held:
At the remand hearing, the employer testified that it has attended many unemployment compensation hearings
before and it "knows how they go," but did not respond when the case was called by the Referee. The Board specifically discredits the employer's testimony that the reason it did not respond when the case was call [sic] was because it believed the Referee had "personal, private questions" to ask the claimant. The Board does not conclude that the employer demonstrated proper cause for its nonappearance at the Referee hearing held on October 9, 2012. Accordingly, the employer's testimony on the merits will not be considered. The Board adopts and incorporates the Referee's findings and conclusions . . . .(R.R. at 49a (emphasis added).)
On appeal, Employer contends that the Board's finding that Employer failed to demonstrate proper cause for its failure to appear at the hearing was unsupported by substantial evidence and that the Board erred when it determined that Claimant was entitled to unemployment compensation when Employer did not have the opportunity to be heard and present evidence concerning Claimant's alleged use of profanity. In response, the Board cites to Section 101.51 of its regulation, 34 Pa. Code § 101.51, arguing that Employer was negligent in not entering the room for the initial hearing when Referee Dietrich called Claimant's name.
This Court's review in an unemployment compensation 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 Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 697 (Pa. Cmwlth. 1994).
Section 101.51 of the Board's regulation provides:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent
available records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code § 101.51 (emphasis added). The Board directs us to several opinions in support of its position—i.e., Eat'N Park Hospitality Group, Inc. v. Unemployment Compensation Board of Review, 970 A.2d 492 (Pa. Cmwlth. 2008); Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa. Cmwlth. 2000); Savage v. Unemployment Compensation Board of Review, 491 A.2d 947 (Pa. Cmwlth. 1985).
In Eat'N Park, the employer had arranged with the referee to have its witness testify by telephone. It had provided detailed instructions to the referee on how to reach the witness. The referee made two failed attempts to reach the employer's witness by telephone, following the instructions provided. After the second failed attempt, the referee proceeded with the hearing without the employer's participation and ruled in favor of the claimant. The employer appealed and, as it did in this case, the Board remanded the matter to the referee for additional evidence on whether the employer had good cause for its nonappearance. On remand, the employer admitted that it was solely at fault and made a mistake in how the referee's telephone call was handled. Eat'N Park, 970 A.2d at 494. The Board ultimately affirmed the referee's initial decision, concluding that the employer lacked good cause for its nonappearance at the hearing by telephone. We affirmed, holding that the employer's confessed negligence was not "good cause" for its nonparticipation. Id. at 494-95.
In Kelly, we reversed the Board's determination that an employer had "good cause" for its failure to appear at a hearing before a referee. There, the employer contended that the employer's personnel director had emergency surgery and, therefore, was not aware of the hearing. We observed, however, record evidence that showed that the personnel director was in the office on several days after the employer had received the hearing notice. We noted that the employer failed to explain how the personnel director did not discover the notice on those days or why the person reviewing her mail in her absence did not also discover the notice and act in the employer's interest. We, therefore, attributed the employer's failure to appear not to the personnel director's emergency surgery, but to the employer's negligence. Kelly, 747 A.2d at 439.
Finally, in Savage, we rejected a claimant's contention that he had "proper cause" for failing to attend the hearing before the referee. The claimant argued that he misread the date on the hearing notice. We held that the claimant's own negligence was not "proper cause" as a matter of law under Section 101.51 of the Board's regulations. Savage, 491 A.2d at 949-50.
In each of the foregoing cases, a party failed to appear, in person or by telephone, for a scheduled hearing on the date and hour and at the place indicated on the hearing notice. This Court attributed their failure to do so to their own negligence. Under the clear terms of the Board's regulation, then, their nonappearance was without "proper cause" and the referee and the Board appropriately proceeded in each of those cases to resolve the claim without the missing parties' participation.
Here, by contrast, the record created by Referee Akomolede at the remand hearing does not establish that Employer's representative, Burns, failed to appear on the date and hour and at the place indicated on the hearing notice. To the contrary, both Burns and Claimant testified that Burns was present in the waiting room. Claimant further testified that she told Referee Dietrich that Burns was present in the waiting room for the hearing. Referee Dietrich, nonetheless, proceeded with the hearing. Burns testified that she signed in for the hearing ten or fifteen minutes before the scheduled start time and that office staff knew she was present for the hearing. The Board did not discredit any of this testimony. To the contrary, the Board's decision tacitly concedes that Employer's representative, Burns, was present, sitting in the waiting room for the hearing to commence.
What the Board faults Employer for is Burns' failure to enter the hearing room "when the case was called by the Referee," citing Burns' testimony that she had attended many unemployment compensation hearings before and "knows how they go." (R.R. at 49a.) But there was no conclusive evidence adduced at the remand hearing as to how Referee Dietrich called Claimant's case. Moreover, to the extent Referee Dietrich called the case by using only Claimant's name, there is no record evidence to support the Board's conclusion that this was the norm—i.e., that Burns, based on her experience, should have known that it was time to go into the hearing room upon hearing Claimant's name only. Based on the absence of such evidence in the record, and considering the uncontradicted evidence described above, we cannot say that Employer is solely at fault for Referee Dietrich's decision to proceed with the initial hearing without Employer's representative, who was sitting outside the hearing room, in the hearing room.
We note that the Board expressly discredited Burns' testimony regarding the reason why she did not enter the hearing room when Referee Dietrich called Claimant's name. "[T]he Board is the ultimate fact finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded the evidence." Unemployment Comp. Bd. of Review v. Wright, 347 A.2d 328, 329 (Pa. Cmwlth. 1975). Accordingly, we do not rely on this discredited explanation in our opinion.
In short, the uncontradicted evidence of record establishes that Employer appeared for the initial hearing at the date, time, and location indicated on the September 27, 2012 Notice of Hearing, that being "1951 New Hope St., 2nd FL, Norristown, PA 19401." (R.R. at 10a, 47a-48a.) On this record, then, the Board's finding that Employer failed to appear at the October 9, 2012 hearing is not supported by substantial evidence, and its application of 34 Pa. Code § 101.51 (relating to absence of a party) was an error of law. We, therefore, reverse the Board's order and remand the matter to the Board, which may further remand the matter to a referee, to issue a new merits decision based on the evidence adduced at the initial and remand hearings.
Employer also asserts that the Board erred when it failed to issue subpoenas it requested before the remand hearing. Employer, however, does not sufficiently develop this issue in its brief. See Pa. R.A.P. 2119. Accordingly, we will not address it here. --------
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of July, 2015, the Order of the Unemployment Compensation Board of Review (Board) is REVERSED, and this matter is REMANDED to the Board for further proceedings consistent with the accompanying opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge