Opinion
No. 772 C.D. 2013
04-28-2014
Fred Wherley, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Fred Wherley (Claimant) petitions this court for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's decision denying Claimant benefits under Section 402(e) of the Unemployment Compensation Law (Law). After review, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Section 402(e) of the Law provides that a claimant shall be ineligible for benefits for any week in which his unemployment is due to a discharge from work due to willful misconduct connected with his work.
The facts as gleaned from the record are as follows. Claimant worked full-time as a truck driver for Honey Locust Farms (Employer) from August 2, 2012 through November 15, 2012. Employer provided Claimant with a fleet travel card to purchase truck and travel related expenses throughout his employment. On October 29, 2012, Employer instructed Claimant to stop driving due to inclement weather and deposited a $100 cash advance on Claimant's fleet travel card to cover the expense of a hotel room. Employer removed the $100 cash advance from Claimant's November 16, 2012 paycheck. After Employer received Claimant's hotel receipt, it reimbursed Claimant's fleet card $70.20.
Claimant stopped by Employer's office after closing on November 21 to pick up his paycheck and a bill of lading for a delivery to Florida he was scheduled to make on November 24. Claimant called Employer's dispatcher, Myles Angstadt, to complain about the $100 deduction from his paycheck. Claimant told Angstadt that he could not work for a company that takes money from his check; that he would not take the delivery to Florida on Saturday; and that he would not return the bill of lading for the delivery until he received his $100.
Claimant also spoke by phone with Employer's Director of Safety, Harold Bumbaugh, who explained that the money deducted from Claimant's paycheck was reimbursed to him on his Fleet card after he submitted receipts substantiating part of the $100 advanced to him to cover his hotel room. Bumbaugh stated that the $100 paid to Claimant on November 22 was for the return of the bill of lading for the Florida delivery.
Angstadt contacted Employer's owner and was told to do whatever was necessary to get the bill of lading returned and to schedule another driver to take the load to Florida. Angstadt contacted Claimant later that same day, who continued to assert that he no longer wanted to work for Employer and that he would not take the delivery to Florida or return the bill of lading until he received his money. Angstadt told Claimant to return the bill of lading the next day, that $100 cash would be in his work mailbox, and that there would be a meeting the following week to address the pay issue. At some point during this conversation, Claimant agreed to make the Florida delivery, but another driver was scheduled as a replacement. Claimant returned the bill of lading on November 22, 2012 and retrieved the $100 cash. On November 27, 2012, Employer informed Claimant that they were accepting his resignation and that he was no longer needed.
Claimant's application for benefits was denied by the UC Service Center, which found that he voluntarily left his employment and that he did not exhaust all alternatives prior to quitting. Claimant appealed, and a hearing was scheduled before the referee.
At the first hearing, the referee discovered that "the recorder was not on. We started the hearing at approximately 11:30 a.m. The time is now 12:35 a.m. (sic)." Hearing of February 14, 2013, Notes of Testimony (N.T.) at 1. Both Claimant and Employer's witness, Bumbaugh, had already testified. The referee immediately turned to Claimant's attorney for direction on how the matter should proceed. Counsel suggested that, "[w]e could continue the hearing." Id. After conferring with both Claimant's attorney and Employer's representative, the referee entered into the record the procedures that had been followed and the documents presented along with all objections. The referee stated that she had read the parties their rights; that they had acknowledged that they understood those rights; that Claimant had timely appealed the Notice of Determination; that the parties had been notified that the issues under consideration were voluntary quit under Section 402(b), 43 P.S. § 802(b) and willful misconduct under 402(e), 43 P.S. § 802(e); and that the burdens of the parties with respect to each issue had been explained to the parties. The referee then explained, "at the next hearing we will start with the Claimant and briefly go through everything that [Claimant] had testified to . . . I have all the notes and we'll just make sure we briefly review the testimony and the cross from the parties." Id. After the referee asked Claimant's attorney whether she had any concerns, counsel in turn asked Claimant if he had any objections to the continuance, to which Claimant responded, "Uh-huh." Id. At the end of the hearing, the referee again explained: "We'll start again at a new hearing and we'll put everybody back under oath. Again, we'll review the testimony and then we'll pick up where we left off. Okay." Id. at 2. No objection was made to the continuance or to the procedure to be followed at that hearing.
At the second hearing, Employer's dispatcher, Angstadt testified, after which both Claimant and Bumbaugh were permitted to testify again. Following the hearing, the referee determined that although Claimant had threatened to quit, he intended to return to work following the outcome of the management meeting regarding the cash issue but that because continuing work was not available, his eligibility would be determined under the discharge provisions of Section 402(e) relating to willful misconduct. The referee denied benefits, finding that Claimant's refusal to take the delivery to Florida and his extortion involving the bill of lading constituted willful misconduct. Claimant appealed to the Board, which adopted and incorporated the referee's findings and conclusions and affirmed the referee's decision. This appeal followed.
Claimant presents the following issues on appeal: 1) whether the referee's failure to record a portion of the hearing resulted in an incomplete, inadequate and deficient record in violation of the law; 2) whether substantial evidence supports the Board's determination that Claimant's employment was terminated due to willful misconduct where the record was inadequate for the Board to conduct a proper review of the evidence and credibility determinations; and 3) whether the Board erred in failing to reverse and remand the matter for a hearing on the record.
Claimant did not raise or articulate a due process issue in his appeal to the Board but he subsequently raised the issue in his petition for review and his brief filed with this court. Although normally this would result in waiver, the issue is encompassed within the other issues that were properly preserved. Accordingly, we will consider his due process argument.
Claimant argues that because the referee failed to record the first hour of the hearing when he and Employer's witness, Harold Bumbaugh, testified, the referee failed to make a proper record as required under 34 Pa. Code § 101.21 and Section 504 of the Administrative Agency Law, 2 Pa. C.S. § 504, thus depriving him of due process under the law. Claimant further argues that the referee compounded this error by failing to start the second hearing over again with both witnesses repeating their entire testimony from the first hearing, as demanded by Claimant. Claimant argues that his unrecorded testimony encompassed his entire case in chief and that the testimony covered at the continued hearing failed to cover any of the evidence and testimony that was discussed in detail at the first hearing. Claimant contends that this situation is precisely the type of extraordinary circumstance contemplated by the court in Walsh v. Unemployment Compensation Board of Review, 329 A.2d 523 (Pa. Cmwlth. 1974). In that case, the claimant sought reversal of a Board decision on the ground of the asserted inadequacy of the record where there were numerous "inaudible" responses in the transcript of the hearing. Although the court rejected the claimant's arguments because she did not specify what evidence was omitted from the record that would have been helpful to her case and because she failed to raise the issue in a timely fashion, it went on to state:
We should not and will not, except in extraordinary circumstances not here present, reverse an administrative agency's decision and remand for further hearing, on the ground of the asserted inadequacy of the record, where the means provided for obtaining the same relief from the agency are not employed.Id. at 527. Claimant argues that, unlike the claimant in Walsh, he made a specific objection before the referee and raised the inadequacy of the record in his brief on appeal to the Board. Claimant maintains that because he was denied due process and a fair hearing, the Board should have remanded the matter to the referee for a hearing on the record. We disagree.
The regulation at 34 Pa. Code § 101.21(a) and (b), which governs the conduct of hearings, provides:
(a) In a hearing the tribunal may examine the parties and their witnesses. Where 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.The regulations also require that "[t]he proceedings of appeal hearings, at both referee and Board levels shall be recorded and preserved for a period of 2 years." 34 Pa. Code § 101.54. In addition, Section 504 of the Administrative Agency Law provides: "No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings."
(b) The tribunal shall determine the order in which the evidence shall be presented in hearings. Within the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights.
For those claimants who appear at a hearing without an attorney, particular care must be taken by the referee both to adequately advise the claimant of his rights and to offer him some level of assistance in presenting his case. Glammer v. Unemployment Comp. Bd. of Review, 449 A.2d 78 (Pa. Cmwlth. 1982). We have held that a referee falls short of his obligation to a pro se claimant where he has chastised the claimant for not reading and remembering the terms of a non-competition agreement, quarreled with claimant's description of the agreement, and objected to claimant's attempted testimony regarding employer's treatment of other employees in the same situation. Zimmerman v. Unemployment Comp. Bd. of Review, 836 A.2d 1074 (Pa. Cmwlth. 2003). See also Coates v. Unemployment Comp. Bd. of Review, 676 A.2d 742 (Pa. Cmwlth. 1996) (referee failed to inform pro se claimant that he could have requested a continuance to secure employer's testimony which would have aided in the development of necessary facts).
In the matter sub judice, Claimant, although represented by an attorney throughout the proceedings, nevertheless asserts that the referee did not meet her obligations to him as required by law. While a referee may not improperly refuse to accept relevant, competent and material evidence, no deprivation of claimant's due process rights is shown if counsel for claimant is permitted to question opposition witnesses, does not object to the conclusion of the hearing, does not request that counsel's witnesses be permitted to testify, does not offer to produce additional probative evidence, and does not request a further hearing. Healey v. Unemployment Comp. Bd. of Review, 387 A.2d 1025 (Pa. Cmwlth. 1978). Nor have we found a due process violation where a claimant's attorney elected not to have witnesses testify after the referee questioned the relevance of the testimony. Wilkins v. Unemployment Comp. Bd. of Review, 502 A.2d 283 (Pa. Cmwlth. 1985). Here, although the referee acknowledged that she had inadvertently not recorded the first hour of testimony, she ultimately took steps to correct her error when she explained the procedure for the continued hearing to Claimant and his attorney and then allowed both Claimant and Harold Bumbaugh to testify again at the continued hearing. Neither Claimant nor his attorney objected.
Moreover, when Claimant and Bumbaugh did testify again, it does not appear that the referee prevented the parties from presenting testimony about the pertinent issues involved. To the contrary, the transcript shows that she allowed both parties ample opportunity for cross-examination and re-direct examination of the witnesses, and endeavored to assist both parties in eliciting facts crucial to the issues involved. The referee repeatedly consulted with Claimant and his attorney as to whether or not they had any further questions for any of the witnesses or whether they had any additional evidence to offer. Having failed to object to the process when given the opportunity to do so by the referee, Claimant cannot now complain that he was not afforded due process of law. We conclude therefore, that Claimant was given a full and fair hearing and that an adequate record was made, which preserved the parties' issues and allowed sufficient evidence upon which the Board based its decision.
Because we have determined that Claimant was afforded a fair hearing, a remand is not necessary. See Shoemaker v. Unemployment Comp. Bd. of Review, 588 A.2d 100, 102 (Pa. Cmwlth. 1991). --------
Next, we address Claimant's argument that the lack of a recording of the first full hour of the hearing affects both the Board's credibility determinations and conclusion that there was substantial evidence of his willful misconduct. Claimant argues that neither of Employer's witnesses testified that they were at the office on the night of November 22, 2012 when he allegedly removed the $100 cash from the mailbox in return for the bill of lading. Claimant asserts that in spite of this lack of first-hand evidence, the referee, without articulating the reason for her finding, determined that he had indeed taken the $100 cash in exchange for the bill of lading. Claimant argues that without testimony from a witness with first-hand knowledge of what happened that night and without his own full and complete testimony, there was insufficient evidence for the Board to reach its conclusion that Employer sustained the burden of proving willful misconduct.
The Board, as the ultimate fact-finder, is empowered to resolve conflicts in the evidence and to determine the credibility of the witnesses. Kelly v. Unemployment Comp. Bd. of Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). The Board's findings of fact are conclusive on appeal if the record, taken as a whole, contains substantial evidence to support those findings. Ryan v. Unemployment Comp. Bd. of Review, 547 A.2d 1283, 1286 (Pa. Cmwlth. 1988). Substantial evidence is "such relevant evidence a reasonable mind might accept as adequate to support a conclusion." Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 275, 501 A.2d 1383, 1387 (1985). In making this determination, we must 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, 1087 (Pa. Cmwlth. 1997).
Claimant's arguments are meritless. Claimant ignores the fact that he was allowed to testify and offer evidence at the continued hearing, which cured the error of the referee in failing to record the first hour of testimony. His argument is nothing more than an attack on the Board's credibility determinations, which this court cannot disturb. Employer's witness Angstadt testified that Claimant called him on November 21, 2012 and said that he [Claimant] "wouldn't give that paperwork [back] unless I gave him $100. So the next morning I went in and I put the $100 cash in an envelope and put it in his mailbox." Hearing of February 19, 2013, N.T. at 2. Angstadt also testified that no one else was at the office that day and that he checked the mailbox later that night and the money was gone. Employer's witness Bumbaugh testified that he "found out that Mr. Angstadt had given [Claimant] $100 so [Claimant] would bring the paperwork back so another driver could take the load that [Claimant] refused." Id. at 12. Although Claimant denied taking the $100 cash, he admitted he returned the bill of lading for the Florida delivery with the understanding that he would be meeting with Employer in the coming week to resolve the $100 deduction from his paycheck. The Board found that Claimant dropped off the bill of lading and retrieved the $100 cash and that Employer discharged him for refusing to take the load to Florida and for refusing to return the bill of lading unless he was paid $100. Referee's Findings of Fact Nos. 21 and 23. The Board adopted the referee's articulation of the reasons for her findings as follows:
In this present case, the claimant argued that the employer did not have the authority to remove the $100 from his paycheck and he rightfully refused the work until it was resolved. The claimant also denies that he received the $100 cash payment. The claimant provided testimony that the bill of lading was returned because he believed the employer was having a meeting with him that week to discuss the cash deduction and that the issue would be resolved at that time. This testimony is not found credible based on the claimant's continued assertions that he would not return the bill of lading until he received the $100 payment and if he took the load, he
would not have been in the area to attend the meeting. The employer witness provided credible testimony that he told the claimant where the money would be placed in exchange for the bill of lading and that the money was gone that same evening. No other workers were at the office that day. Furthermore, the employer had the right to deduct the $100 from the claimant's check as the reimbursement for the claimant's hotel was made to the claimant's travel card. The claimant's refusal to perform assigned work and extortion involving the bill of lading is in disregard of the employer's interests and standards of behavior the employer has a right to expect of any employee, rising to the level of willful misconduct.Referee's Decision dated February 20, 2013, at 3. Viewing the evidence in the light most favorable to Employer, it was logical and reasonable for the Board to infer, based on the credible testimony of Employer's witnesses, that Claimant took the $100 cash that was placed in the mailbox at work in exchange for the bill of lading. This testimony, credited by the Board, amply supports its conclusion that Claimant was terminated for willful misconduct connected with his work. Accordingly, we affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 28th day of April, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge