Powell, G. v. UCBR, Aplt ( 2017 )

[J-114-2016] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
GARY H. POWELL : No. 38 MAP 2016
:
: Appeal from the Order of the
v. : Commonwealth Court dated November
: 6, 2015 at No. 1704 CD 2014, vacating
: and remanding the order of the UCBR
UNEMPLOYMENT COMPENSATION : dated August 13, 2014 at No. B-13-09-
BOARD OF REVIEW : D-B064
:
JOE KRENTZMAN & SONS, INC., : SUBMITTED: September 14, 2016
:
Intervenor :
:
:
:
APPEAL OF: UNEMPLOYMENT :
COMPENSATION BOARD OF REVIEW :
DISSENTING OPINION
JUSTICE TODD DECIDED: March 28, 2017
At issue in this appeal is principally a question of statutory construction: in
allowing representation in unemployment compensation hearings to be performed by
“an attorney or other representative,” 43 P.S. § 774, did the legislature intend to exclude
suspended attorneys? The majority never fully addresses this question; rather, in my
view, it conflates this Court’s undisputed authority over attorneys with a putative
obligation of the Unemployment Compensation Board of Review (the “Board”) to
enforce our disciplinary pronouncements. In so doing, the majority allows the Board to
overlook its own governing statute. Instead, that statute — 43 P.S. § 774 — should be
our starting and ending point. Thus, and for the following reasons, I respectfully dissent.
Powell relies on Section 774 as authority for his right to select any person,
including a suspended attorney, as his representative before the Board. Section 774
provides: “Any party in any proceeding under this act before the department, a referee
or the board may be represented by an attorney or other representative.” 43 P.S.
§ 774.1 By its use of the phrase “attorney or other representative,” the legislature
seemingly intended to allow a party to be represented by anyone, irrespective of their
authorization to practice law. This intent controls our interpretation. See 1 Pa.C.S.
§ 1921(a) (“The object of all interpretation and construction of statutes is to ascertain
and effectuate the intention of the General Assembly.”). However, to the degree there
is any ambiguity in this conclusion, I find that the circumstances under which this statute
was enacted, and its related legislative history, resolve it. See id. § 1921(c) (when the
words of a statute are ambiguous, we may discern the legislature’s intent by
considering, inter alia, the occasion and necessity for the statute, the circumstances
under which it was enacted, and the contemporaneous legislative history).
Prior to the enactment of Section 774, in Harkness v. Unemployment Comp. Bd.
of Review, 867 A.2d 728 (Pa. Cmwlth. 2005) (en banc), the Commonwealth Court
addressed the question of whether a non-attorney, non-employee was engaged in the
unauthorized practice of law when he represented an employer at an unemployment
compensation hearing. Therein, Macy’s Department Store contested a claim for
unemployment compensation. At the hearing, Macy’s was represented by an employee
of an out-of-state company in the business of representing companies in unemployment
compensation matters; the representative was not an attorney. The claimant was
1
Section 862 more specifically provides claimants with the right to be represented by
“counsel or other duly authorized agent.” 43 P.S. § 862. While the language of Section
862 and 774 are substantially the same, Powell relies on the more general authority of
Section 774.
[J-114-2016] [MO: Dougherty, J.] - 2
denied benefits and appealed to the Board wherein she challenged Macy’s
representation by a non-attorney. The Board rejected that challenge; however, on
further appeal, the Commonwealth Court reversed that determination. After noting the
general rule that non-attorneys may not represent parties in court or before
administrative agencies, the court observed one exception to that rule, allowing
claimants in unemployment compensation proceedings to be represented by a non-
lawyer. 867 A.2d at 731 (citing 43 P.S. § 862 (“Any individual claiming compensation in
any proceeding before the department, the board, or referee may be represented by
counsel or other duly authorized agent.”)). However, finding no similar statutory
allowance for a corporate employer, the court concluded that Macy’s representative was
engaged in the unauthorized practice of law, and that Macy’s, as a corporation which
can only act through its agents, must be represented by an attorney at such
proceedings. The Harkness decision was issued in February 2005.
Four months later, the legislature passed various amendments to the
Unemployment Compensation Law, including the addition of Section 774, which
provides, as previously noted, that any party in unemployment compensation
proceedings may be represented by an attorney “or other representative.” 43 P.S. §
774. The legislative history makes plain that the bill’s purpose was to respond to the
Harkness decision, and allow any party, including corporate parties, to be represented
by non-attorneys. See Pennsylvania House of Representatives Legislative Journal,
2005 Regular Session, No. 34 (June 7, 2005), at *31 (remarks of Representative
Belfanti: in discussing the Harkness decision, noting that claimants may be represented
at unemployment compensation hearings by non-attorneys, and that “if one party should
be allowed to be represented by experts other than attorneys, why not both sides? And
that is what this legislation would correct.”); id. at *32 (remarks of Representative Gabig:
[J-114-2016] [MO: Dougherty, J.] - 3
in noting that legislation was a response to the Harkness decision, stated: “The
[claimant], they could have their girlfriend representing them as their representatives -
and I guess that was not the unauthorized practice . . . . It is just simply not fair.”); id. at
*30 (remarks of Representative Manderino: discussing the Harkness decision, but
indicating she was voting against the bill because the bill did not exclude non-attorney
outside paid consultants from representing a corporation). Indeed, when Governor
Rendell signed the bill, he explicitly stated that its purpose was to respond to the
Harkness decision and allow non-attorney representation. See Governor’s Message,
189th General Assembly, 2005 Regular Session (June 30, 2005) (noting that the bill
“amends the UC State Law to re-establish the ability of any party in a UC benefit
proceeding to be assisted by an attorney or other representative. The amendment
restores appeals procedures that existed prior to a February 2005 Commonwealth
Court ruling in Harkness v. UCBR.”). Thus, it is clear that the intent behind Section 774
was to place corporate employers on equal footing with claimants, and to allow any
party their choice of representation, whether or not the representative is an attorney.
Although this Court accepted review in Harkness, we issued our decision after
Section 774 had been enacted. Harkness v. Unemployment Comp. Bd. of Review, 920
A.2d 162 (Pa. 2007) (“Harkness II”). While the Court issued only a plurality opinion in
support of its judgment, a majority of the Court nonetheless reversed the
Commonwealth Court’s order, thus permitting non-lawyer representation before the
Board.2 The plurality explicitly concluded that representation before the Board was not
the practice of law, noting the “scant advising as to legal rights and responsibilities,” the
2
On the then-five-member Court, then-Chief Justice Cappy authored the Opinion
Announcing the Judgment of the Court, joined by Justice Baer. Now-Chief Justice
Saylor concurred in the result.
[J-114-2016] [MO: Dougherty, J.] - 4
fact that “enforcement of the law is lacking,” the remedial nature of the underlying law,
the long history of non-lawyer representatives, and the informal nature of the
proceedings, which are designed to be quick and efficient:
[T]he claims for benefits are not intended to be intensely
litigated. Unemployment compensation proceedings are not
trials. The rules of evidence are not mandated; there is no
pre-hearing discovery; the parties have no right to a jury trial;
indeed there is no requirement that the referee be a lawyer.
Also, and importantly, there are only minimal amounts of
money in controversy. Issues arising in these matters are
generally questions of fact not requiring complex legal
analysis.
Id. at 168 (citations omitted). In addition, without reliance on the enactment of Section
774, the plurality found statutory support for the conclusion that corporations, like
claimants, were permitted to be represented by non-lawyers. Id. at 170 (citing 43 P.S.
§ 862; id. § 822 (“The parties and their attorneys or other representatives of record and
the department shall be duly notified of the time and place of a referee's hearing . . . .”)).
In sum, in light of the Harkness litigation and the legislature’s reaction thereto, I
conclude that Section 774 gives parties a broad right to a representative of their choice
before the Board — whether that individual is an attorney or not. The majority’s
discernment of a third category of representatives — suspended attorneys — who are
neither an “attorney” nor an “other representative,” Majority Opinion at 8-9, to the
degree it is an effort at statutory construction, is not grounded in Section 774. Section
774 does not place any limits on the representation and, indeed, was enacted in
response to such constraints. Moreover, I see no reason why suspended attorneys
should be deemed ipso facto less capable of performing activities which the legislature,
and seemingly this Court, has decided do not require an attorney at all.
Yet, herein, the Board did not apply Section 774, relying instead on this Court’s
disciplinary orders to preclude Powell’s choice of representation, and the majority
[J-114-2016] [MO: Dougherty, J.] - 5
sanctions that approach. However, neither the Board nor the majority has offered a
basis for concluding that the Board is bound by this Court’s disciplinary
pronouncements, or, most importantly, that it may “uphold[] the force and effect of this
Court’s orders” with regard to suspended attorneys, Majority Opinion at 15, in
contravention of its statutory duties.
The Board, as an administrative board within an executive agency, is not part of
the Unified Judicial System. See Pa. Const. art. V, § 1; see also 43 P.S. § 763(c) (“The
board shall be a departmental administrative board, and shall have all the powers and
perform all the duties generally vested in, and imposed upon, departmental
administrative boards and commissions by The Administrative Code . . . .”). While there
is a right of appeal from the decisions of our Commonwealth agencies to a court of
record, Pa. Const. art. V, § 9, this Court has no general supervisory or administrative
authority over such agencies. See Pa. Const. art. V, § 10 (setting forth this Court’s
“general supervisory and administrative authority over all the courts and justices of the
peace”); Hayes v. City of Scranton, 47 A.2d 798, 801 (Pa. 1946) (discussing that courts
“have no general authority of supervision” over an agency’s exercise of discretion).
Outside of enforcing constitutional or statutory mandates, we have no authority over an
agency’s rules of practice or procedure. See Mercy Hosp. of Pittsburgh v. Pennsylvania
Human Relations Comm'n, 451 A.2d 1357, 1359 (Pa. 1982) (“As long as an agency is
discharging its legislatively prescribed functions, a court of equity has no authority to
dictate its procedure unless it offends due process, or violates the statutory mandate
under which the agency receives its authority.” (citations omitted)). Moreover, the
Board is not a part of our disciplinary system, not a party to our disciplinary orders, nor a
subject of our orders. Indeed, members of the Board and its referees are not required
to be attorneys. See 43 P.S. § 763 (setting forth qualifications of Board and referees).
[J-114-2016] [MO: Dougherty, J.] - 6
In short, in my view, the Board is under no legal compulsion to enforce our disciplinary
orders; but, more critically, it may not “uphold the force and effect” of our disciplinary
orders in a manner contrary to its statutory duties.3 Cf. Aetna Cas. & Sur. Co. v. Com.,
Ins. Dep't, 638 A.2d 200 (Pa. 1994) (noting that an administrative agency may exercise
only those powers conferred by the legislature).
While this Court’s role in governing the practice of law is exclusive, in Harkness
II, a majority of this Court reversed the Commonwealth Court’s conclusion that
representation before the Board constituted the practice of law, and no one has
questioned the constitutionality of Section 774 vis-à-vis this exclusive authority. See
Piunti v. Com., Dep't of Labor & Indus., Unemployment Comp. Bd. of Review, 933 A.2d
135, 137–39 (Pa. Cmwlth. 2007) (holding, in light of this Court’s decision in Harkness II,
that Section 774 was not an unconstitutional infringement on this Court’s exclusive
authority to regulate the practice of law).
Thus, Section 774 controls, and this Court’s disciplinary orders do not alter the
Board’s obligation to comply with the statute.4 Accordingly, I would affirm the
3
I find the majority’s citation to Slater v. Rimar, Inc., 338 A.2d 584 (Pa. 1975), to be
unpersuasive, as that case held that a trial judge — indisputably falling under this
Court’s supervisory authority and accorded inherent judicial power — need not await the
disciplinary system and may take measures to avert an attorney’s violation of the ethical
rules.
4
I agree with the majority that the Board arguably could have invoked its power to
preclude Powell’s choice of representation under 2 Pa.C.S. § 503 (“Any Commonwealth
agency may, upon hearing and good cause shown, preclude any person from practice
before it.”). Majority Opinion at 15-16. However, in the instant matter, the Board did not
assert this authority as a basis for its decision.
[J-114-2016] [MO: Dougherty, J.] - 7
Commonwealth Court’s conclusion that Powell was entitled to the representative of his
choice before the Board, and would remand on that basis.5
For these reasons, I respectfully dissent.6
5
I do not address Powell’s argument that his equal protection and due process rights
were violated by the Board’s actions, see Majority Opinion at 16-17, as I agree his
statutory right was violated.
6
I also distance myself from the majority’s pronouncement that “[b]ecause the
suspension orders are enforceable specifically against them as individuals, it was
incumbent on Bailey and Ostrowski as formerly admitted attorneys to decline the
opportunity to represent appellee.” Majority Opinion at 15 n.9. In my view, it is an open
question whether this Court has the authority to bar suspended attorneys from
participating in activities that this Court has seemingly rejected as being the practice of
law. Harkness II.
[J-114-2016] [MO: Dougherty, J.] - 8