Opinion
No. 559 C.D. 2014
12-23-2014
James D. Turek, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
James D. Turek (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) denying his claim for UC benefits pursuant to Section 402(e) of the UC Law (Law). On appeal, Claimant argues that the Board's denial was improper because (1) he was denied due process during the appeals process; and (2) the Board erred in finding that Claimant's unsatisfactory performance of his duties rose to the level of willful misconduct. Discerning no error, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is 'employment' as defined in this act." Id.
I. BACKGROUND
Claimant was employed by the School District of Philadelphia (Employer) as a grants compliance monitor from June 1, 2012, until December 26, 2012. (2014 Board Decision, Findings of Fact (2014 FOF) ¶ 1.) On December 27, 2012 Employer discharged Claimant for "continued unsatisfactory work performance, lack of follow-through on protocols and directives, and resistance to move forward with office systems and procedures." (2014 FOF ¶ 23.) Claimant applied for UC benefits. (Internet Initial Claims Form, R. Item 2.) Because Employer was unable to show that Claimant was not working to the best of his abilities before termination, the UC Service Center (Service Center) found claimant eligible for UC benefits. (Notice of Determination, R. Item 4.)
Employer appealed the Service Center's determination, and the matter was assigned to a UC Referee (Referee) for a hearing. (Employer's Petition for Appeal, R. Item 5.) Employer appeared at the hearing and presented the testimony of its Executive Director of Federal Programs (Director) and Unemployment Assistant (Assistant). Claimant participated in the hearing via the telephone and testified on his own behalf. Based on the evidence presented at the hearing, the UC Referee reversed the Service Center's determination and found Claimant ineligible for UC benefits under Section 402(e) of the Law. Claimant timely appealed to the Board and requested a copy of the transcript of the hearing before the Referee. (Claimant's Petition for Appeal from Referee's Decision and Order and Request for Transcript, R. Item 15.) Claimant did not receive a copy of the transcript because the Board did not respond to Claimant's request. On September 3, 2013, the Board issued a Decision and Order affirming the Referee's Decision. (2013 Board Decision and Order, R. Item 16.) Upon receiving the Board's 2013 Decision and Order, Claimant filed a second request for a copy of the transcript of the Referee's hearing. (Claimant's 2nd Request for Transcript of Testimony, R. Item 17.) Claimant also petitioned this Court for review of the Board's 2013 Decision and Order. See Turek v. Unemployment Compensation Board of Review, No. 1809 C.D. 2013.
Upon receipt of Claimant's second request for the transcript, the Board recognized that Claimant's initial request was not timely fulfilled and sent a copy of the transcript to Claimant. (Board's Response to Claimant's Request for Transcript of Testimony, R. Item 18.) The Board then filed an application for remission with this Court requesting that this matter be remanded to the Board to permit Claimant to file a brief on remand to argue any inaccuracies in the transcript. (Board's Filing of Remission of Appeal to the Unemployment Compensation Board of Review, R. Item 21.) By Order dated November 7, 2013, this Court granted the Board's application for remission and remanded this matter to the Board. (Remand Order, November 7, 2013, R. Item 22.)
On remand, Claimant filed a brief in support of his appeal. (Claimant's Brief, R. Item 24.) Upon review of Claimant's brief and the record, the Board vacated its 2013 Decision and Order and issued a new Decision and Order. Therein, the Board found as follows:
1. [Claimant] was last employed as a grants compliance monitor by the [Employer] from June, 1, 2012, at a final bi-weekly rate of $2,819.23 and his last day of work was December 26, 2012.
2. [Claimant] had requested and been granted permission to be off from work on September 10, 2012, a day [Employer] held a staff meeting in which office policies and procedures were discussed.
3. Because [Claimant] missed the meeting, [Director] placed a note on [Claimant's] chair indicating that the claimant must follow through with the [D]irector to discuss what he missed.
4. [Claimant] did not follow through to discuss what he missed at the meeting.
5. On September 12, 2012, [Employer] had training on a code correction process. [Claimant] did not report to the training on his own, resulting in [Employer] calling [Claimant] down to the meeting.
6. [Director] questioned [Claimant] about missing the meetings. [Claimant] indicated to [Director] that he had other things to catch up on and that following through with missed meetings was not a priority.
7. [Employer] required all grants compliance monitors to update their monitoring tools using a specific template on [Employer's] shared drive so that [Employer] could access them by September 30, 2012.
8. By October 12, 2012, [Employer] discovered that [Claimant] had failed to follow through with the updating of the office systems and procedures.
9. On October 12, 2012, [Director] discussed with [Claimant] several work performance issues, including his failure to follow through on protocol and directives and resistance to move forward with office systems and procedures.
10. [Claimant] indicated that he was having technology issues related to his Apple computer and that he was more proficient in using other types of personal computers (PCs).
11. [Claimant] requested that [Employer] purchase him a new non-Apple PC and deduct it from his pay; however, grants compliance monitors use Apple systems and the employer provided the same type of Apple computer to a number of its grants compliance monitors.
12. The Apple computers were able to access [Employer's] shared drive, but a non-Apple PC could not.
13. [Employer] provided non-Apple PCs at its facility that had access to the employer's shared drive. [Claimant] could have used these computers if he was having trouble with his Apple computer, but he never did.
14. [Employer] offered to identify various co-workers who were proficient at using Apple computers and could have assisted [Claimant].
15. [Claimant] requested access to [Employer's] Employee Assistance Program (EAP) to improve his work performance; however, the purpose of the EAP is to improve employee performance and productivity for employees affected by personal problems such as family or marital stress, substance abuse, or medical or emotional disorders.
16. [Employer] advised [Claimant] that if there were future occurrences of unsatisfactory performance, that [Claimant] would receive discipline up to and including termination.
17. [Employer] directed [Claimant] to move his documents into [Employer's] shared drive by October 17, 2012.
18. On October 18, 2012, [Employer] noticed that [Claimant's] documents were not in the proper format.
19. On November 7, 2012 and November 15, 2012, [Employer] provided [Claimant] with feedback on how to put his documents in the proper format.
20. By November 30, 2012 [Claimant's] documents were still not in the proper format.
21. On December 3, 2012, [Employer] had a meeting with [Claimant] to discuss his work performance issues including his continued failure to follow through on protocol and directives.(2014 FOF ¶¶ 1-23.)
22. [Director] created a conference summary of the meeting and recommended [Claimant's] termination from employment.
23. On December 27, 2012, [Employer] discharged [Claimant] for his continued unsatisfactory work performance, lack of follow-through on protocols and directives, and resistance to move forward with office systems and procedures.
Based on the findings, the Board concluded that Claimant's "continued unsatisfactory work performance indicated a lack of effort in the performance of his job duties and rose to the level of willful misconduct." (2014 Board Decision at 5.) The Board found Employer's witnesses credible with regard to Claimant's work performance and his unwillingness to correct his performance issues. (2014 Board Decision at 4.) The Board did not find Claimant credible that: (1) the Apple computer provided by Employer did not function properly; (2) he could not use the shared personal computers provided by Employer; (3) he informed Employer that his personal issues were interfering with his performance; (4) Employer denied him assistance under its Employee Assistance Plan (EAP); and (5) Employer did not have performance standards. (2014 Board Decision at 4-5.) The Board also declined to address Claimant's argument that he was precluded from testifying regarding Employer's allegations that Claimant was late for work because the Board did not consider Claimant's lateness in determining his eligibility for UC benefits. (2014 Board Decision at 5.) Accordingly, the Board determined that Claimant was ineligible for UC benefits under Section 402(e) of the Law. (2014 Board Decision at 5.)
II. DISCUSSION
Claimant now petitions this Court for review. In support of his appeal, Claimant raises several issues.
Our review of the Board's decision "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
A. Whether Claimant's Due Process Rights Were Violated
Claimant first argues that there were multiple due process violations beginning with the Referee's hearing and continuing throughout the appeals process. We address these arguments seriatim.
"[T]he essential elements of due process in an administrative proceeding are notice and an opportunity to be heard." McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002) (citations omitted). An unrepresented claimant is entitled to assistance from the referee in the development of his case. Id. The referee, however, "is not required to become and should not assume the role of a claimant's advocate." Id. A referee is required to advise a claimant that he has the right to an attorney, to cross-examine adverse witnesses, and to offer his own witnesses. Ehmann v. Unemployment Compensation Board of Review, 483 A.2d 587, 589 (Pa. Cmwlth. 1984). The formal rules of evidence do not apply to hearings before the Board, which are "by design, brief and informal in nature." Harkness v. Unemployment Compensation Board of Review, 920 A.2d 162, 168 (Pa. 2007).
Here, Claimant argues that his due process rights were violated because during the hearing he was confused regarding the numbering of the Referee's exhibits and the Referee continued the hearing despite his objection. However, during the hearing Claimant testified that he had no objections to the documents. (Hr'g Tr. at 5, R. Item 13.) Instead, Claimant asked the Referee if he needed to refer to the documents by the number assigned by the Referee to each document. (Hr'g Tr. at 4-5.) The Referee clarified with Claimant that he did not need to identify the documents by number, it was acceptable to identify the document he was referring to, and that the Referee would check to see if it was in the record. (Hr'g Tr. at 5.) Claimant agreed and the hearing proceeded accordingly without any apparent confusion on Claimant's part. (Hr'g Tr. at 5.) Therefore, we conclude that Claimant's due process argument based on his alleged confusion is unsupported by the record.
Claimant argues next that his constitutional right to due process was violated because there were multiple occasions throughout the hearing that were transcribed as inaudible and those "gaps in testimony did not allow the transcript of the initial hearing to present a reliable record of the proceedings." (Claimant's Br. at 11.) "A complete record accurately presenting the full testimony of each witness is essential in reviewing the Board's decision." Leone v. Unemployment Compensation Board of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005) (citations omitted). Where an "inaudible" notation is present throughout the transcript, as to render the testimony incomplete or ambiguous, the matter should be remanded. Id. No violation of due process occurs, however, "when the inaudible testimony does not affect the meaning, context or import of the witness' testimony, and a remand is unwarranted in that instance." Id.
In the present transcript there are numerous notations of "inaudible." However, after an examination of the entire transcript, this Court concludes that the inaudible notations do not render the testimony incomplete or ambiguous. Moreover, Claimant does not explain how any of the particular portions that were inaudible render the transcript an unreliable record of the proceedings or how he was prejudiced by the "inaudible" notations in the transcript. Accordingly, this Court does not agree that the "gaps in testimony" prevent the transcript of the hearing from being a reliable record of the proceedings.
Next, Claimant also argues that his due process rights were violated because he was given limited time to cross examine Employer's witnesses at the hearing. The record, however, does not support this claim. At the beginning of the hearing the Referee explained the hearing procedure to Claimant, stating that, "after each witness testifies, you can ask them questions on cross examination and then you can testify after the two witnesses testify." (Hr'g Tr. at 6.) Claimant testified that he understood the procedures. (Hr'g Tr. at 6.) After Employer's witnesses testified, Claimant was able to cross examine the witnesses and ask questions related to the reasons for his dismissal, office protocol and procedures, and issues related to his Employer issued computer. (Hr'g Tr. at 10-18.) The transcript reflects that the Referee did not limit Claimant's time to cross examine the witnesses, or prevent him from asking questions. Additionally, after Claimant testified and Employer asked questions, both Employer and Claimant were permitted to ask follow up questions. (Hr'g Tr. at 24-25.) Claimant was, again, given an opportunity to discuss his computer issues with Employer's witness. (Hr'g Tr. at 25.) Therefore, we conclude that Claimant's due process rights were not violated because he was permitted ample time to cross examine Employer's witnesses after they testified.
Next, Claimant argues that his due process rights were violated throughout the appeal process. Claimant first asserts that the Board was "delinquent in addressing [his] request for a copy of the transcript of the July 8, 2013 hearing." (Claimant's Br. at 11.) However, the Board, after realizing its mistake, immediately provided Claimant with a copy of the transcript and requested a remand from this Court to allow Claimant to file a brief to clarify any inaccuracies in the transcript. Claimant then filed his brief with the Board as permitted. As such, we conclude that Claimant's due process rights were not violated by the delay in receiving the transcript.
Finally, Claimant argues that his due process rights were violated because the Board discounted the brief he submitted to the Board and, instead, relied on the record. The ability to file a brief, in accordance with the opportunity to be heard, is an element of due process in an administrative proceeding. McFadden, 806 A.2d at 958 (citing Sacks v. Unemployment Compensation Board of Review, 429 A.2d 136, 137 (Pa. Cmwlth. 1981)).
Claimant contends that the Board agreed to accept a brief that would "clarify [and] supplement the record." (Claimant's Br. at 11.) Claimant, however, misconstrues the Board's offer to accept a Claimant's brief on remand. Upon receipt of Claimant's petition for review seeking review of the Board's 2013 Decision and Order, the Board notified Claimant that it was "willing to take [his] case back from the Commonwealth Court in order to allow [him] to file a brief with the Board to clarify any inaccuracies in the transcript." (Board's Notification to Claimant of Remission of Case, R. Item 19.) The Board's notification did not state that the purpose of the brief was to "clarify [and] supplement the record" as asserted by Claimant. The purpose of the Board's notification was to permit Claimant to raise any factual discrepancies found in the transcript and to assert legal arguments based on the evidence in the record, not to introduce additional evidence to supplement the record.
The Board must base its findings of fact on the evidence that is submitted into the record during the Referee's hearing unless the Board: (1) directs the taking of additional evidence; or (2) grants a party's request for a remand to present evidence not offered at the original hearing because such evidence was not available. Here, the record shows that both Employer and Claimant had a full opportunity to testify and present evidence during the Referee's hearing. Thus, because the record before the Board was sufficient for the Board to resolve the issues presented, the Board did not abuse its discretionary authority by not directing the taking of additional evidence. See Hussar v. Unemployment Compensation Board of Review, 432 A.2d 643, 645 (Pa. Cmwlth. 1981) (holding that "if the Board determines that the record before it is inadequate for a proper resolution of the issues presented," it may, in its discretion, direct the taking of additional evidence). In addition, Claimant did not request a remand to present additional evidence and it does not appear that the evidence Claimant wants to introduce would not have been available at the original hearing before the Referee. Therefore, Claimant's right to due process was not violated by the Board's alleged discounting of Claimant's brief and reliance on the record.
See Section 504 of the Law, 43 P.S. § 824 (providing that the Board has the authority to adjudicate a UC claim "on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence"); 34 Pa. Code § 101.106 (providing that "the Board may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted, or direct the taking of additional testimony").
"[A] remand hearing is generally granted to allow a party the opportunity to present evidence not offered at the original hearing because it was not then available." Fisher v. Unemployment Compensation Board of Review, 696 A.2d 895, 897 (Pa. Cmwlth. 1997).
B. Whether the Board Erred in Determining that Claimant's Conduct Constituted Willful Misconduct
Next, Claimant argues that the Board erred in finding that his conduct rose to the level of willful misconduct. Claimant argues that his discharge for unsatisfactory work performance resulted from the "failure of [Employer] to adhere to workplace policy regarding employee evaluations." (Claimant's Br. at 12.) Further, Claimant argues that the unsatisfactory work performance happened in a short amount of time during which he was required to learn new procedures and adjust to a new environment. Claimant also argues that the Board incorrectly concluded that there was continued unsatisfactory performance amounting to a lack of effort rising to the level of willful misconduct.
Section 402(e) of the Law provides that "[a]n employe shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work." 43 P.S. § 802(e). "The employer bears the initial burden of establishing a claimant engaged in willful misconduct." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 (Pa. Cmwlth. 2014). "[I]ncompetence, inexperience, or inability to perform a job generally will not support a finding of willful misconduct." Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 647 (Pa. Cmwlth. 2012). However, "[w]illful misconduct is established when action or inaction by the claimant amounts to conscious disregard of the interests of the employer or constitutes behavior contrary to that which an employer has a right to expect from an employee." Gardner v. Unemployment Compensation Board of Review, 454 A.2d 1208, 1209 (Pa. Cmwlth. 1983). "Poor work performance reflecting an unwillingness to work to the best of one's ability is indicative of a disregard for the standard of conduct an employer has a right to expect and may rise to the level of willful misconduct." Id. Whether Claimant's conduct rose to a level of willful misconduct is a question of law that is fully reviewable on appeal. Johns, 87 A.3d at 1010.
Once an employer meets its initial burden, the claimant must then prove that he had good cause for his actions. McKeesport Hospital v. Unemployment Compensation Board of Review, 625 A.2d 112, 114 (Pa. Cmwlth. 1993). A claimant establishes good cause when "his or her actions are justifiable or reasonable under the circumstances." Docherty v. Unemployment Compensation Board of Review, 898 A.2d 1205, 1208-09 (Pa. Cmwlth. 2006).
The Board is the ultimate fact-finder in UC disputes, "and is empowered to resolve all conflicts in evidence, witness credibility, and weight accorded [to] the evidence." Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). It is immaterial whether the record contains evidence that can support a finding different than what was made by the Board. Id. "[T]he critical inquiry is whether there is evidence to support the findings actually made." Id. Substantial evidence is such relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Philadelphia Gas Works v. Unemployment Compensation Board of Review, 654 A.2d 153, 157 (Pa. Cmwlth. 1995). On review, the prevailing party below is entitled to the benefit of all reasonable inferences drawn from the evidence. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 607 (Pa. Cmwlth. 2011).
Here, the Board found that Employer discharged Claimant for "his continued unsatisfactory work performance, lack of follow-through on protocols and directives, and resistance to move forward with office systems and procedures." (2014 FOF ¶ 23.) This finding is supported by substantial evidence.
The Board found Employer's witnesses credible. Director testified as follows. Claimant missed a staff meeting and training where office policies and procedures were discussed, in addition to training and directives on how to follow through with office policies and procedures. (Hr'g Tr. at 7.) Claimant was instructed to follow up on what he missed at the meetings, but failed to do so. (Hr'g Tr. at 7.) When asked why he did not follow through on what he missed at the meeting, Claimant responded, "that he had other things to catch up on and that following through with missed meetings was not a priority." (Hr'g Tr. at 8.) Claimant did not dispute this testimony.
Additionally, the Board found credible Director's testimony that Claimant was told to use a specific template that is used by all employees and to place his files in Employer's shared drive by September 30, 2012. (Hr'g Tr. at 8.) As of October 12, 2012, Claimant still had not loaded his files onto the shared drive. (Hr'g Tr. at 8.) On October, 12, 2012, Employer and Claimant had a meeting to discuss Claimant's work-related issues. (Hr'g Tr. at 9.) At this meeting, Employer advised Claimant that continued failure to comply with office protocol and directives would lead to disciplinary action, up to and including dismissal. (Hr'g Tr. at 9.)
Director further testified that after the meeting there were attempts to provide support and assistance to Claimant in his performance of his duties. (Hr'g Tr. at 9.) Claimant was instructed to put his documents onto Employer's shared drive by October 17, 2012. (Hr'g Tr. at 9.) On October 18, 2012, the documents were not in the proper format. (Hr'g Tr. at 9.) Employer provided feedback to Claimant on how the documents were supposed to look on November 7, 2012, and again on November 15, 2012. (Hr'g Tr. at 9.) As of November 26, 2012, the documents still were not corrected. (Hr'g Tr. at 9.) On November 30, the information on the documents was still incomplete. (Hr'g Tr. at 9.) Based on his unsatisfactory work performance and the lack of follow-through on protocols and directives, Employer discharged Claimant.
Because the Board's findings are supported by Employer's credited testimony, the findings are conclusive on appeal. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1383, 1389 (Pa. 1985) (stating that the Board's findings, "if supported by substantial evidence, are conclusive upon state courts reviewing its decisions.") Accordingly, the Board did not err by finding that Claimant's conduct constituted willful misconduct.
Next, Claimant argues that he had good cause for his conduct because he had numerous problems with the Apple PC provided by Employer, which contributed to his difficulties in performing his job duties. Claimant states that the computer was over seven years old and had mechanical problems. Additionally, Claimant contends that he attempted, to no avail, to procure a new non-Apple Computer that would enable him to succeed in his position.
The Board in this matter, however, discredited Claimant's testimony and found Employer's testimony, that other employees in the office used the same model and year computer as Claimant with no problems, to be credible. (2014 Board Decision at 4.) In addition, Claimant provided no additional evidence to support his contention that his computer had mechanical problems. The Board also credited Employer's testimony that employees in Claimant's position were required to use Apple PCs and that "employees who did not use Apple systems did not have the same job title as [Claimant]." (2014 Board Decision at 4.) As fact-finder, the Board was free to accept Employer's testimony as credible and persuasive. Ductmate, 949 A.2d at 344. Therefore, the Board did not err in determining that Claimant's computer troubles did not constitute good cause for his misconduct.
Finally, Claimant argues that because Employer wrongfully denied him assistance under the EAP, the Board should not have found that his conduct rose to the level of willful misconduct. Claimant challenges the Board's determination that he did not mention during the Referee's hearing that he had medical or stress-related problems such that he would have qualified for assistance through Employer's EAP. Claimant further challenges the Board's conclusion that "there is no indication in the record that [Claimant] ever informed [Employer] about these alleged issues so that he could take advantage of the EAP." (2014 Board Decision at 5.) Claimant contends that he discussed the EAP and the reasons why he qualified for assistance in the brief he submitted to the Board on remand and that he offered testimony regarding the EAP during the Referee's hearing.
The Board, in its review of the EAP, found that the purpose of the program is to "improve employee performance and productivity for employees affected by personal problems such as family or marital stress, substance abuse, or medical or emotional disorders." (2014 Board Decision at 5 (emphasis in original).) --------
As discussed previously, the purpose of Claimant's brief on remand was to bring to the Board's attention any inaccuracies that Claimant believed were apparent in the transcript of the Referee's hearing. The purpose was not for Claimant to submit additional evidence into the record. Moreover, Claimant's testimony during the Referee's hearing with respect to the EAP was very limited. Claimant testified that he asked Employer about the EAP because it appeared to him that Employer had some problems with him and he wanted to see if the EAP would be available to help him improve his work performance. (Hr'g Tr. at 22.) Claimant testified further, in response to Employer's statement that the EAP was for employees experiencing medical problems, that it was his understanding that the EAP was not limited to medical problems. (Hr'g Tr. at 22-23.) Claimant offered no further testimony with respect to the EAP or any specific medical or stress issues he experienced while working for Employer. Thus, the transcript supports the Board's conclusions that Claimant did not testify that he had medical or stress-related issues that would have qualified him for assistance under Employer's EAP or that he informed Employer of these issues. (Hr'g Tr. at 22-23.) Accordingly, the record does not support Claimant's assertion that Employer wrongfully denied him assistance under the EAP.
III. CONCLUSION
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, December 23, 2014, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge