Opinion
No. 2226 C.D. 2014
07-09-2015
Brian Zimmer, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Brian A. Zimmer (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §402(e).
A hearing was conducted on August 6, 2014. At the beginning of the hearing, the Referee noted the following:
...Mr. Zimmer indicated that he was expecting Counsel to appear. He made a telephone call a moment ago and concluded that Counsel is not going to appear. He asked me about whether a postponement could be granted. I notified him that under the circumstances that would not be possible. Let me ask you Mr. Zimmer if that is an accurate recapitulation of our conversation.
C [Claimant]: Yes.Notes of Testimony, August 6, 2014, (N.T.) at 1.
R [Referee]: And were you provided with a reason that Counsel was not able to be here?
C: I was not.
The Referee stated that Claimant had "the right to be represented by Counsel or non-legal advisor, the right to present evidence and testimony, the right to call witnesses, [and] the right to question those who testify for the opposing side." N.T. at 2. The Referee further explained:
After Mr. Grubb [Employer's witness] testifies, Mr. Zimmer [Claimant] will have the opportunity to question him, if he wishes. Then Mr. Zimmer [Claimant] will be provided the opportunity to testify, if he wishes, after which Mr. Grubb [Employer's witness] may question him, if he chooses. Both of you will have the opportunity to dispute the testimony of the opposing side and to make a closing statement, if you wish...I will note for the record that before we were on the record and discussing with Mr. Zimmer [Claimant] his options, I told him that he would have the option to participate as much or as little as he likes in the hearing. He cannot be compelled to participate. I told him that he could, had the option only of participating or not participating. He elected to enter the hearing room. The extent to which he elects to be part of this hearing is his decision.N.T. at 3.
Claimant did not request to have counsel, did not provide testimony, and did not question Employer's witness.
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a project manager by Lami Grubb Architects. The claimant's last day of work was May 21, 2014.Board's Decision, October 28, 2014, (Decision), Findings of Fact (F.F.) Nos. 1-9 at 1-2.
2. The claimant did not report to work on May 22, 2014.
3. On May 22, 2014, two 920 officers [officers from the Attorney General's Office] informed the employer that the claimant had been arrested and requested access to all the computers he had worked on.
4. On the same day, the employer attempted to send the claimant a certified letter informing him that he is on unpaid leave and not permitted to come to the office. The letter also informed the claimant that he would be contacted in the future to discuss his employment status.
5. The employer believes that the claimant never saw the certified letters it attempted to send to his house.
6. The employer was unable to contact the claimant and was not notified by the claimant of his absenteeism.
7. The employer used an accumulation of the claimant's remaining personal and vacation time to pay the claimant while he was absent.
8. On May 30, 2014, the employer sent the claimant a letter that stated, '[d]ue to your job abandonment, you have voluntarily resigned as an employee of Lami Grubb Architects, L.P.'
9. The employer discharged the claimant for job abandonment.
The Board further determined:
While the claimant attended the Referee's hearing, he did not present any testimony or evidence on the record. Without any competent evidence for why the claimant abandoned his employment, the Board must find that the claimant did not establish good cause.Decision, Discussion at 2.
Accordingly, the Board concludes that the claimant's job abandonment amounted to willful misconduct; therefore, benefits are denied pursuant to Section 402(e) of the Law. The Board also notes that an employer and employee cannot determine the employee's entitlement to benefits....
Claimant contends that he was denied his right to due process when the Referee proceeded with the hearing after the Claimant refused to waive his right to counsel and asked for a continuance.
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 findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
On appeal to the Board, Claimant stated:
Claimant was discharged for reasons other than 'willful misconduct' connected with the work of his employer. Rather, Claimant had been arrested as the result of an illegal and unlawful entrapment by the Office of Attorney General and as such, did not abandon his job and was not guilty of willful misconduct' under Section 402(e) of the law.Claimant's Petition for Appeal from Referee's Decision, August 17, 2014, at 1.
Claimant failed to raise the issue regarding the denial of his due process rights before the Board. Rule 1551 of the Rules of Appellate Procedure requires that "[r]eview of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit...."
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 9th day of July, 2015, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
Because the referee did not provide Claimant a fair hearing and the fairness of a hearing can be raised for the first time on appeal to this court, see Felici v. Unemployment Compensation Board of Review, 444 A.2d 843, 844 (Pa. Cmwlth. 1982), and Peda v. Unemployment Compensation Board of Review, 439 A.2d 888, 889 (Pa. Cmwlth. 1982), I respectfully dissent.
See also Atwell v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 1030 C.D. 2009, filed February 17, 2010), slip op. at 7 (stating that the fairness of a hearing, even if not raised before the referee or the Board, "is a matter of a constitutional dimension that can be raised for the first time in an appeal to this [c]ourt"). Pursuant to section 414 of the Commonwealth Court's Internal Operating Procedures, 210 Pa. Code §69.414(a), an unreported decision may be cited for its persuasive value. --------
Claimant appeared at the referee's hearing, but Claimant's counsel did not. The referee instructed Claimant to call his counsel. Claimant called, but was unable to reach his counsel. Claimant requested a continuance, which the referee denied.
The majority concludes that the referee, thereafter, properly advised Claimant of his right to counsel and Claimant did not request to have counsel. (Maj. Op. at 2.) However, the majority ignores the fact that the referee had denied Claimant's initial request for a postponement so that counsel could be present. It would be pointless for Claimant to again request counsel when his initial request was denied.
Here, Claimant did not waive his right to counsel, and the referee proceeded despite counsel's absence. In Williams v. Unemployment Compensation Board of Review, 484 A.2d 831, 833 (Pa. Cmwlth. 1984), the claimant similarly "refused to waive his right to legal representation after making a bona fide attempt to have counsel at the hearing." This court concluded that the claimant was prejudiced by the referee's decision to proceed despite the claimant's refusal to waive his right to counsel. Id. Because this case is controlled by Williams, I would vacate the Board's decision and remand to the Board to conduct an evidentiary hearing at which Claimant is represented by counsel.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge