Opinion
No. 1979 C.D. 2008, 1980 C.D. 2008.
Submitted: April 17, 2009.
Filed: July 10, 2009.
BEFORE: LEADBETTER, President Judge; SIMPSON, Judge; FRIEDMAN, Senior Judge.
OPINION NOT REPORTED
In these consolidated appeals, Van Hawk Painting Company, Inc. (Employer) challenges two orders of the Unemployment Compensation Board of Review (Board). In its first order, the Board granted Barbara Bianchini (Claimant) unemployment compensation benefits based on its determinations that Employer discharged Claimant and did not prove she committed disqualifying willful misconduct. See Section 402(e) of the Unemployment Compensation Law (Law). In its second order, the Board determined, as a result of its decision that Claimant was eligible for unemployment benefits, Claimant did not receive an overpayment of benefits. See Section 804(b) of the Law, 43 P.S. § 874(b). Discerning no error in the Board's orders, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,as amended, 43 P.S. § 802(e).
I. Facts A. Entitlement to Benefits
Beginning in July 2006, Claimant worked for Employer as its fulltime receptionist. On May 23, 2007, Claimant sustained neck, back and knee injuries as a result of an automobile accident. Claimant maintained weekly contact with her immediate supervisor, advising Employer of her condition.
In early-September 2007, Employer hired a temporary employee and divided Claimant's responsibilities among three permanent employees and the temporary employee.
In late-September 2007, Claimant contacted Employer and indicated she could return to work with restrictions. In response, Employer informed Claimant it filled her position and advised Claimant to retrieve her belongings from Employer's office. Claimant subsequently contacted her supervisor and arranged to obtain her belongings.
Shortly thereafter, Claimant applied for unemployment benefits, claiming Employer laid her off due to a lack of work. A UC service center denied benefits under Section 402(b) of the Law, 43 P.S. § 802(b) (relating to voluntary quits). Notably, Claimant appealed, arguing she did not voluntarily quit, but rather Employer refused her request to return to work. A notice of hearing subsequently placed both Sections 402(b) and 402(e) at issue. At hearing, Claimant testified, among other things, her separation from employment was involuntary. After hearing, a referee denied benefits pursuant to Section 402(b). Claimant appealed to the Board.
On appeal, the Board determined Claimant did not voluntarily quit her position; rather, based on Claimant's credited testimony, the Board determined Employer discharged Claimant and did not prove she committed willful misconduct. The Board further determined Claimant was able and available for suitable work pursuant to Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1). As such, the Board awarded benefits.
B. Overpayment
Claimant initially applied for unemployment benefits effective September 23, 2007. She filed claims for the compensable weeks ending October 6, 2007 through January 26, 2008, for which she received a total of $5,984.00 in benefits.
Based on its initial denial of benefits, the Department of Labor and Industry (Department) issued a determination establishing a non-fault overpayment of $5,984.00. Claimant appealed this determination, and a referee affirmed based on his decision that Claimant was ineligible for benefits. On further appeal by Claimant, the Board reversed, concluding there was no overpayment because, based on the Board's decision, Claimant was eligible for benefits.
Employer appealed the Board's order that granted Claimant benefits as well as the Board's order that determined Claimant did not receive an overpayment of benefits. This Court consolidated Employer's appeals. These matters are now before us for disposition.
II. Issues
On appeal, Employer argues the Board erred in: determining Employer discharged Claimant from her employment where the evidence showed Claimant voluntarily quit her position; considering this case under Section 402(e) of the Law when the initial determinations focused on Section 402(b) of the Law; and, determining Claimant did not receive an overpayment of benefits.
We are limited to determining whether the Board's findings were supported by substantial evidence, whether errors of law were made, or whether constitutional rights were violated. Skowronek v. Unemployment Comp. Bd. of Review, 921 A.2d 555 (Pa.Cmwlth. 2007).
III. Discussion
In unemployment compensation proceedings, the Board is the ultimate fact-finder and is empowered to resolve conflicts in the evidence and to determine the credibility of witnesses. McCarthy v. Unemployment Comp. Bd. of Review, 829 A.2d 1266 (Pa.Cmwlth. 2003). In making these determinations, the Board may accept or reject the testimony of any witness, in whole or in part. Id. The Board's findings are conclusive on appeal if the record, when viewed as a whole, contains substantial evidence to support those findings. Id. Thus, it is irrelevant whether the record contains evidence that would support contrary findings.Duquesne Light Co. v. Unemployment Comp. Bd. of Review, 648 A.2d 1318 (Pa.Cmwlth. 1994). Moreover, we view the record in the light most favorable to the party that prevailed before the Board, giving that party the benefit of all logical and reasonable inferences deducible from the evidence.Stringent v. Unemployment Comp. Bd. of Review, 703 A.2d 1084 (Pa.Cmwlth. 1997).
A. Separation from Employment
Employer first argues the record does not support the Board's findings that it discharged Claimant. As a result, Employer contends the Board erred in determining it terminated Claimant; rather, Employer contends, the record supports a determination that Claimant voluntarily quit her employment without good cause.
A claimant is ineligible for compensation when her "unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . ." Section 402(b) of the Law. "Whether an employee's conduct constitutes voluntary termination is a question of law to be determined by examining the findings of fact made by the Board." Fishel v. Unemployment Comp. Bd. of Review, 674 A.2d 770, 772 (Pa.Cmwlth. 1996) (citations omitted). For an employer's statement to be interpreted as a discharge, the "language must possess the immediacy and finality of firing." Id. Statements such as "pick up your pay," "turn in your key," "pull your time card," "turn in your uniform," and "there's the door" possess the finality of a firing. Rizzitano v. Unemployment Comp. Bd. of Review, 377 A.2d 1060 (Pa.Cmwlth. 1977). In contrast, where an employer's statement presents a claimant with the option of maintaining the employment relationship, this Court does not find a termination. See Keast v. Unemployment Comp. Bd. of Review, 503 A.2d 507 (Pa.Cmwlth. 1986) (holding employer's statement, "how would you like to leave," lacked the immediacy and finality of a firing); Lawlor v. Unemployment Comp. Bd. of Review, 391 A.2d 8 (Pa.Cmwlth. 1978) (holding employer's advice to claimant that he either change his attitude toward his supervisor or make a decision as to what he was going to do, lacked the immediacy and finality of a firing).
In support of its assertion that the Board erred in determining it discharged Claimant, Employer challenges the following Board findings:
3. [C]laimant maintained weekly contact with her immediate supervisor, advising [E]mployer of her physical condition.
* * * *
6. During the third week of September, [C]laimant called and spoke to [E]mployer. [C]laimant informed [Employer] that she could return to work, albeit with limitations.
7. [E]mployer told [C]laimant that her job had been filled and that she needed to come get her belongings.
Bd. Op., 9/15/08, Findings of Fact (F.F.) Nos. 3, 6-7. Employer asserts, because these findings lack sufficient record support, the Board's ultimate determination that Employer discharged Claimant is erroneous. We disagree.
1. Finding of Fact No. 3.
As to Finding of Fact No. 3, Employer asserts, although Claimant testified she periodically spoke with her supervisor regarding her medical condition, she did not testify she provided weekly updates. Employer argues that, although Claimant's supervisor indicated sheinitially spoke with Claimant weekly, after Claimant did not return to work as promised on June 25, 2007, they did not discuss Claimant's return to work. Employer maintains no reasonable inference can be made that Claimant made any concerted or regular effort to inform Employer of the date of her return.
Contrary to Employer's assertions, Finding of Fact No. 3 is directly supported by the testimony of Lee Edlund-Schiefer, Employer's office manager and Claimant's immediate supervisor, who testified that after Claimant's accident, she talked with Claimant "weekly" or "at least once a week." Reproduced Record (R.R.) at 118a. As such, we reject Employer's argument that the Board's Finding of Fact No. 3 lacks record support.
2. Finding of Fact No. 6.
Similarly, we reject Employer's challenge to Finding of Fact No. 6 as this finding is supported by Claimant's testimony. Specifically, the following exchange occurred between Claimant and the referee:
[Referee]: Okay. What could you — in September at what point did you feel you could go back to work? About when? There's a calendar.
[Claimant]: Well, I guess September. I would say maybe the second or third week.
[Referee]: Okay.
[Claimant]: Maybe the third week.
* * * *
[Claimant]: Okay. I can't remember. I can't remember the date.
[Referee]: Okay. If you can't remember the dates do you remember having a discussion?
[Claimant]: Yeah, I remember discussing.
[Referee]: Okay. Who were you . . .
[Claimant]: Periodically I would call [Schiefer] and tell her — give her the update. And then when I was ready to come back to work I was told that the position had been filled. To come and get my things.
[Referee]: Who were you talking to?
[Claimant]: I don't remember who it was at that point. It might have been Lee. It could have been — there's another girl, Eileen. So I did e-mail Tom.
[Referee]: Mr. Hawkins?
[Claimant]: Yeah.
R.R. at 102a-03a (emphasis added). Because Claimant testified she could not recall with whom she spoke when she contacted Employer, Employer asserts her testimony is equivocal and, therefore, cannot support the Board's finding that Claimant informed Employer she could return to work during the third week of September 2007. See Feinberg v. Unemployment Comp. Bd. of Review, 635 A.2d 682, 684 (Pa.Cmwlth. 1993) ("[t]estimony which is so uncertain or inadequate or equivocal or ambiguous or contradictory as to make . . . the findings . . . of an administrative fact finder mere conjectures is not . . . substantial in administrative proceedings as a matter of law.") (Citation omitted) (Emphasis deleted).
Contrary to Employer's assertion, the fact that Claimant's memory of her communication with Employer may have been somewhat unclear, goes to the weight afforded her testimony, not its competency. In that regard, the Board explicitly stated "[C]laimant credibly testified that she contacted [E]mployer in mid-September 2007 about returning to work. . . ." Bd. Op., 9/15/08 at 2. In short, the challenged finding is directly supported by Claimant's testimony, R.R. at 102a-03a, and we cannot disturb the Board's credibility determination. McCarthy.
3. Finding of Fact No. 7.
Employer further asserts Claimant's testimony is insufficient to support the Board's finding that Employer informed Claimant her job had been filled. See F.F. No. 7. Employer maintains, although Claimant testified she was informed her position was filled, she could not identify who informed her of this and, as a result, the Board's finding is based on hearsay and is inadmissible. Absent this inadmissible statement, Employer maintains, the record lacks evidence to support a finding that Employer informed Claimant her position had been filled.
"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Leonard Packel Anne Bowen Poulin, Pennsylvania Evidence, § 801-1 at 722 (1999). An out-of-court statement is offered in evidence to prove the truth of the matter asserted if the party offering the statement is offering it for the purpose of proving the facts communicated in the statement. Id. at 724.
Under the relaxed evidentiary rules in administrative proceedings,see 2 Pa. C.S. § 505, hearsay may be admissible and may support findings of fact in certain circumstances. Rox Coal Co. v. Workers' Comp. Appeal Bd. (Snizaski), 570 Pa. 60, 807 A.2d 906 (2002).
Pursuant to Rule 803 of the Pennsylvania Rules of Evidence, certain statements are not excluded by the hearsay rule, even though the declarant is available as a witness, such as an admission by a party opponent. See Pa. R.E. 803(25). Rule 803(25)(D) allows a statement offered against a party if it is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Pa. R.E. 803(25)(D). Thus, a statement made by an agent or servant of a party is admissible if the following three elements are established:
(1) the declarant was an agent or employee of the party opponent; (2) the declarant made the statement while employed by the principal; and (3) the statement concerned a matter within the scope of the agency or employment.
Biddle v. Dep't of Transp., 817 A.2d 1213, 1215 (Pa.Cmwlth. 2003) (quoting Sehl v. Vista Linen Rental Serv., Inc., 763 A.2d 858, 862 (Pa.Super. 2000)). "It is the proponent of the statement who bears the burden of establishing the declarant's scope of employment." Id. at 1216 (quoting Sehl, 763 A.2d at 863).
Employer contends, although Claimant asserted below that the statement at issue was admissible as a representative admission, her testimony cannot satisfy this exception as she was unable to identify who made the statement. We disagree. While Employer is correct that Claimant did not specifically identify the individual who made the statement, Claimant did testify she worked in a small office, which had only a few employees. In particular, aside from Claimant, the other employees were Schiefer, Employer's office manager and Claimant's direct supervisor, Tom Hawkins, Schiefer's supervisor, and a co-worker identified as "Eileen." R.R. at 113a.
Claimant further testified that around the third week of September 2007, she contacted Employer's office to inform Employer she could return to work. R.R. at 102-03a. Claimant explained, "[p]eriodically I would call [Schiefer] and tell her — give her the update. And then when I was ready to come back to work I was told that the position had been filled. To come and get my things." R.R. at 103a. When asked who informed her that her position had been filled, Claimant responded, "I don't remember who it was at that point. It might have been [Schiefer]. It could have been — there's another girl, Eileen. So I did e-mail Tom [Hawkins]." Id. Although Claimant testified most of her conversations were with Schiefer, she also testified she exchanged e-mails with Hawkins. R.R. at 103a, 108a, 111a, 113a. Additionally, it is clear that Claimant's communications with Employer were limited to those she had with Schiefer, Hawkins or Eileen as these were the only employees in Employer's office. R.R. at 113a.
Claimant's testimony quantifying Employer's office size, coupled with her credited testimony that she did, in fact, speak with someone in Employer's office, is sufficient to satisfy the requirement that the individual who informed Claimant her position was filled and to pick up her belongings was an employee of Employer.
Indeed, based on this credited testimony, this is not a case likeHarris v. Toys "R" Us-Penn, Inc., 880 A.2d 1270 (Pa.Super. 2005), upon which Employer relies. There, a plaintiff filed suit against Toys "R" Us after she sustained an alleged injury when a toy fell from a shelf and struck her on the head. Ultimately, a jury found Toys "R" Us was not negligent. In her post-trial motions, the plaintiff asserted the trial court erred in granting Toys "R" Us' motion in limine to bar hearsay statements by an unidentified declarant purported to be an agent or employee of Toys "R" Us. Specifically, the plaintiff asserted that, shortly after she sustained the injury, the alleged declarant approached her and apologized, stating he just placed the toy in question back on the shelf after showing it to a customer. Despite this assertion, the plaintiff offered no clear evidence that the declarant was an agent or employee of Toys "R" Us. Nevertheless, the plaintiff alleged the statement was admissible as, among other things, an admission by party opponent. The trial court denied the post-trial motion, and the Superior Court affirmed, concluding the statement was inadmissible as an admission by party opponent because the plaintiff offered no clear evidence that the declarant was, in fact, a Toys "R" Us employee. Id. at 1277. Given that the plaintiff could not show the declarant was an employee of the principal at the time the statement was made, the Superior Court determined the trial court did not err in excluding the plaintiff's testimony.
Unlike the plaintiff in Harris, Claimant's testimony was not incomplete or confusing on the issue of whether the person she spoke with at Employer's office was, in fact, an employee. To the contrary, Claimant clearly testified that she did speak with an employee in Employer's office, which consisted of only three individuals other than herself. Claimant's credited testimony identifying the three other employees in Employer's office and explaining that she spoke with someone in Employer's office is sufficient to distinguish this case from Harris.
Similarly, Sehl v. Vista Linen Rental Service, Inc., 763 A.2d 858 (Pa.Super. 2000), does not support Employer's position. There, the Superior Court upheld a trial court's decision to exclude certain statements where the proponent could not identify the declarant because, absent the identity of the declarant, it was unclear whether the declarant had authority to make the statements.
Here, unlike in Sehl, Claimant specifically identified the three other employees in Employer's small office and credibly explained she spoke with someone in Employer's office and was informed her job had been filled. Again, given the small size of Employer's office, which Claimant clearly quantified, and Claimant's credited testimony that she spoke with one of these employees, Sehl is distinguishable.
In sum, the record supports the Board's findings that: Claimant maintained weekly contact with her supervisor after her injury; in late-September, Claimant informed Employer she could return to work with restrictions, and that, in response, Employer told Claimant her job had been filled. Based on these findings, the Board determined employer discharged Claimant. The Board stated:
The first issue that must be determined is whether [C]laimant voluntarily or involuntarily separated from her employment. [C]laimant credibly testified that she contacted [E]mployer in mid-September 2007 about returning to work. At that point, [C]laimant was informed that her position had been filled. [C]laimant has credibly established that she was discharged.
Bd. Op., 9/15/08 at 2. We discern no error in the Board's determination. More specifically, Claimant's credited testimony that when she attempted to return to work Employer informed her that her position had been filled supports the Board's determination that Claimant's separation from employment was involuntary. Indeed, Employer's statement gave Claimant no option to continue her employment but instead possessed the immediacy and finality of a termination. Fishel; Rizzitano. Employer's arguments that Claimant voluntarily quit her employment invite this Court to reweigh the evidence, which we may not do. McCarthy; Duquesne Light Co. Therefore, we discern no error in the Board's ultimate determination that Employer discharged Claimant.
Because we conclude the Board correctly determined Employer discharged Claimant, we need not address Employer's argument that Claimant was ineligible for benefits under Section 402(b) of the Law on the ground she lacked good cause to voluntarily quit her position.
Additionally, Employer does not challenge the Board's determination that Employer did not satisfy its burden of proving Claimant's discharge was the result of willful misconduct. Bd. Op., 9/15/08 at 2; Petitioner's Br. at 19. Thus, this issue is waived. See Rapid Pallet v. Unemployment Comp. Bd. of Review, 707 A.2d 636 (Pa.Cmwlth. 1998) (failure to develop issue in appellate brief results in waiver).
B. Board's Consideration of Matter Under Section 402(e)
Employer next argues the Board erred in considering this matter under Section 402(e) of the Law (relating to willful misconduct) where both the service center and the referee considered this case under Section 402(b) (relating to voluntary quit). This argument lacks merit.
Section 101.107 of the Board's regulations provides:
§ 101.107. Issues considered on appeal.
(a) In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may consider an issue in the case though not expressly ruled upon in the decision of the Department or the referee and though not previously raised in the claim or appeal proceedings. However, issues not previously considered or raised will not be considered by the Board, either upon application for, or in the determination of an appeal unless the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
34 Pa. Code § 101.107(a) (emphasis added).
The language of the above-quoted regulation and this Court's decisions in Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa.Cmwlth. 2002) and Cassidy v. Unemployment Compensation Board of Review, 532 A.2d 524 (Pa.Cmwlth. 1987), clearly state the Board can consider "any issue" and is not constrained to those ruled upon by the referee or the service center. The only constraint on the Board's review is the requirement that it cannot consider issues that would surprise or prejudice any party. Id. Accord Kligge v. Unemployment Comp. Bd. of Review, 491 A.2d 325 (Pa.Cmwlth. 1985) (no due process violation when Board based its determination on Section 402(e), even though decision below was based on Section 402(b); because the claimant insisted he was fired while the employer insisted the claimant quit, the parties had notice both sections would be considered and final resolution of the issue would depend on Board's credibility determination).
Here, we reject Employer's claim that it was prejudiced or unfairly surprised by the Board's decision to resolve this matter under Section 402(e) of the Law. Indeed, from the outset, Claimant asserted her separation from employment was involuntary. More particularly, in her initial questionnaire, Claimant asserted that she as "laid off because of lack of work and was never offered to be rehired by [E]mployer[.]" R.R. at 22a. In addition, in her appeal of the service center's denial of benefits, Claimant asserted she "did not voluntarily quit," but rather "[w]hen she wanted to return to work, [E]mployer refused her." R.R. at 36a. As a result, the Notice of Hearing sent to Employer, within the section regarding what issues may be considered on appeal, specifically informed Employer Section 402(e) could be considered. R.R. at 59a. Further, at the referee hearing, Claimant testified her separation from Employer was involuntary, and Employer's witness refuted this assertion. R.R. at 102a-03a; 118a-19a. As such, facts were adduced on the issue of whether Claimant was discharged at the referee hearing. Therefore, we reject Employer's claim that the Board erred in considering this case under Section 402(e).
C. Alleged Overpayment
As a final issue, Employer argues the Board erred in determining Claimant did not receive an overpayment of benefits. It argues that, because the Board erred in granting benefits, the Board also erred in determining Claimant did not receive an overpayment of benefits.
With regard to non-fault overpayments, Section 804(b)(1) of the Law states, in relevant part:
(b)(1) Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year, or the three-year period immediately following such benefit year. . . .
Here, the Board determined "[s]ince it has been determined that [C]laimant is not ineligible for benefits under Section 402(e) . . . [C]laimant does not have an overpayment." Bd. Op., 9/15/08 at 2. Because we agree with the Board that Claimant is eligible for benefits under Section 402(e), we discern no error in the Board's determination that Claimant did not receive a non-fault overpayment.
Based on the foregoing, we affirm.
ORDER
AND NOW, this 10th day of July, 2009, the orders of the Unemployment Compensation Board of Review at Decision Nos. B-476379 and B-476380 are AFFIRMED.