B.E. Heckman v. UCBR ( 2019 )


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  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Brian E. Heckmann,                       :
    Petitioner   :
    :
    v.                           :   No. 1313 C.D. 2018
    :   Submitted: February 1, 2019
    Unemployment Compensation                :
    Board of Review,                         :
    Respondent           :
    BEFORE: HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE ANNE E. COVEY, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE BROBSON                         FILED: April 16, 2019
    Petitioner Brian E. Heckmann (Claimant), pro se, petitions for review
    of an order of the Unemployment Compensation Board of Review (Board). The
    Board affirmed a Referee’s determination that Claimant was ineligible for benefits
    under Section 402(b) of the Unemployment Compensation Law (Law),1 relating to
    voluntary separation from employment. For the reasons set forth below, we now
    affirm the Board’s order.
    Claimant filed for unemployment compensation benefits following his
    separation from employment with Adecco, USA, Inc. (Employer), a temporary
    staffing agency. Claimant received $789 of unemployment compensation benefits
    1
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
    43 P.S. § 802(b).
    for the weeks ending April 8, 2018, through April 22, 2018. By notice dated
    June 12, 2018, the Erie Unemployment Compensation Service Center (Service
    Center) determined Claimant to be ineligible for benefits under Section 402(b) of
    the Law and assessed a fault overpayment in the amount of $789 under
    Section 804(a) of the Law.2 (Certified Record (C.R.), Item No. 4.) Claimant
    appealed the Service Center’s determination.
    On June 22, 2018, the Referee’s office mailed to Claimant at his address
    in Wexford, Pennsylvania, notice of a hearing scheduled for July 9, 2018, in
    Pittsburgh, Pennsylvania. The notice informed Claimant of the issue(s) to be
    considered. It also advised Claimant that he “should attend the hearing to protect
    [his] rights” and that he had a right to “present . . . testimony and evidence,”
    “question opposing parties and witnesses,” and “be represented by an attorney or
    other advocate.” (C.R., Item No. 7 at 2.) The notice provided that a party may
    represent himself or may be represented by an attorney or other advocate. (Id.)
    The Referee conducted an evidentiary hearing, at which neither
    Claimant nor Employer appeared. During the hearing, the Referee entered into the
    record various documents, including various Service Center documents, notice of
    the hearing, a statement from Claimant indicating that he will not be appearing at
    the hearing and setting forth various contentions of Claimant (Exhibit 6), and a letter
    from Employer’s representative to the Service Center providing information on
    behalf of Employer (Exhibit 9). (C.R., Item No. 10. at 1.) The Referee noted that
    Claimant’s father appeared at the hearing and wanted to represent Claimant, but,
    because the Referee did not have anything in writing from Claimant indicating that
    2
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
    § 874(a). Section 804(a) of the Law, pertaining to fault overpayments, requires a claimant to repay
    the fault overpayment with interest.
    2
    his father was to be his representative, the Referee did not permit the father to
    represent Claimant. (Id.) The Referee also noted that Claimant’s father provided an
    address for Claimant (in Florida), which differed from the address on file for
    Claimant. (Id.)
    The Referee denied benefits pursuant to Section 402(b) of the Law,
    relating to voluntary separation from employment, and assessed a non-fault
    overpayment in the amount of $789 under Section 804(b) of the Law.3 In so doing,
    the Referee made the following findings of fact:
    1.     [Claimant]    worked       for    [Adecco]     from
    March 23, 2017, until his last day of work,
    March 31, 2017.
    2.     [Claimant] voluntarily left his employment.
    3.     If [Claimant] had not voluntarily left his
    employment, continuing work was available for
    him.
    4.     [Claimant] received $789.00 in benefits for the
    weeks ending April 8, 2017, through April 22, 2017.
    (C.R., Item No. 11.) The Referee reasoned that Claimant did not meet the burden of
    proving that he voluntarily terminated his employment for a necessitous and
    compelling reason. (Id.) The Referee also explained that Claimant’s father appeared
    at the hearing without identification or authorization from Claimant. (Id.) Instead,
    3
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
    43 P.S. § 874(b). Section 804(b)(1) of the Law, pertaining to non-fault overpayments, does not
    require a claimant to repay the non-fault overpayment. Rather, Section 804(b)(1) of the Law,
    provides, in part:
    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, in accordance with
    the provisions of this paragraph.
    3
    Claimant’s father provided a document, purporting to be from Claimant. (Id.) The
    Referee concluded that the document constituted hearsay and was not corroborated
    by any competent evidence in the record. (Id.) Finally, the Referee concluded that
    there was no evidence sufficient to establish a fault overpayment. (Id.) Thus, the
    Referee assessed a non-fault overpayment. (Id.)
    Claimant appealed the Referee’s decision to the Board, asserting factual
    and procedural issues. The Board adopted and incorporated the Referee’s findings
    of fact and conclusions of law and affirmed the Referee’s decision. (C.R., Item
    No. 13.) Claimant now petitions this Court for review.
    On appeal,4 Claimant argues that the Referee’s refusal to allow
    Claimant’s father to participate in the hearing as Claimant’s representative and the
    Referee’s failure to inform Claimant of procedures for participating via telephone
    constituted violations of Claimant’s right to due process. As to the merits, Claimant
    argues that the Referee and Board erred in concluding that he did not have
    necessitous and compelling reasons to quit.5
    First, we address Claimant’s argument that the Referee violated his due
    process rights.      The essential elements of due process in an administrative
    proceeding are notice and an opportunity to be heard. Groch v. Unemployment
    Comp. Bd. of Review, 
    472 A.2d 286
    , 287-88 (Pa. Cmwlth. 1984); Wojciechowski
    4
    This Court’s standard of review is limited to determining whether constitutional rights
    were violated, whether an error of law was committed, or whether necessary findings of fact are
    supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
    § 704.
    5
    Claimant also argues that this Court does not have personal jurisdiction over him. This
    argument has no merit because Claimant is the party who filed this unemployment compensation
    claim, appealed to the Referee and Board, and brought this subsequent appeal in this Court, thereby
    clearly availing himself of process and this Court’s jurisdiction.
    4
    v. Unemployment Comp. Bd. of Review, 
    407 A.2d 142
    , 143 (Pa. Cmwlth. 1979). An
    allegation of a violation of due process essentially challenges whether the Referee
    conducted the hearing in accordance with Section 101.21 of Title 34 of the
    Pennsylvania Code.6 Hackler v. Unemployment Comp. Bd. of Review, 
    24 A.3d 1112
    ,
    1115 (Pa. Cmwlth. 2011). This Court has consistently held that the unemployment
    compensation authority’s failure to provide an itemized list of a claimant’s options
    upon appeal is not a violation of due process.              
    Groch, 472 A.2d at 288
    ;
    
    Wojciechowski, 407 A.2d at 143
    . Further, a referee’s failure to itemize each of a
    claimant’s available options on appeal is not procedural error. 
    Groch, 472 A.2d at 288
    . Unemployment compensation regulations, including telephone regulations,
    are publicly available.7 The referee, by her own motion, “may schedule . . .
    testimony by telephone . . . when it appears from the record that the party . . . is
    located at least 50 miles from the location [of the hearing].”             34 Pa. Code
    § 101.128(a). The referee may also schedule testimony by telephone on a motion
    by one of the parties when either the parties consent to the telephone testimony or a
    witness is “reasonably unable to testify in person due to a compelling employment,
    transportation, or health reason, or other compelling problem.”             34 Pa. Code
    § 101.128(b).
    Claimant contends that the unemployment compensation authorities
    offered him no meaningful opportunity to present facts in his defense. Claimant
    argues that neither the Service Center nor the Referee informed him of his option to
    participate by phone, and, when he made efforts to have representation or participate
    by phone, the Referee enforced unmentioned restrictions. We observe, however,
    6
    34 Pa. Code § 101.21.
    7
    For example, Pennsylvania’s regulations on the scheduling of telephone testimony is
    found under 34 Pa. Code § 101.128.
    5
    that when Claimant received unemployment compensation benefits and when he
    appealed the Service Center’s determination, Claimant provided his address as
    Wexford, Pennsylvania. The Referee had no reason to know that Claimant was
    living in Florida, because Claimant did not provide the Referee with an up-to-date
    address after moving from Pennsylvania to Florida. It was Claimant’s responsibility
    to inform the Service Center that he was no longer living in Pennsylvania. The
    Referee had no reason to know that Claimant now lived more than 50 miles from the
    hearing location, and, therefore, she did not have reason to schedule the hearing as
    a telephone hearing. Further, because the telephone regulations are publically
    available, the Referee’s failure to itemize Claimant’s options under the regulations
    does not constitute procedural error.
    Claimant also argues that the Referee violated his due process rights
    when the Referee did not permit Claimant’s father to advocate on Claimant’s behalf.
    A review of the record reveals that the Referee provided notice and advised Claimant
    of his procedural rights. The notice of hearing informed Claimant of the date of the
    hearing, the issues under consideration, what evidence he would need, and his rights
    on appeal. These rights included his right to present testimony and evidence, to
    cross-examine witnesses, and to be represented by an attorney or other
    representative. The notice of hearing further explained how to contact the Referee
    regarding specific requests and what to do if a party was unable to attend the hearing.
    The Referee provided Claimant notice and the opportunity to be heard, but Claimant
    chose not to appear. Claimant’s “failure to avail [him]self of that opportunity before
    the [R]eferee is no cause for any remedial action on [his] behalf.” 
    Groch, 472 A.2d at 288
    .
    6
    There is no unemployment compensation regulation that provides the
    required steps to permit a representative to appear on behalf of a claimant at a
    hearing. Regarding representation, Section 214 of the Law8 merely 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.” See also 34 Pa. Code
    § 61.25(a)(3)(ii) and (7). The Referee did not permit Claimant’s father to appear on
    behalf of Claimant, concluding that the document, purporting to be from Claimant,
    authorizing Claimant’s father to appear on Claimant’s behalf, was inadmissible
    hearsay.9 (C.R., Item No. 11.) The Referee noted that because Claimant did not
    provide a writing indicating that he was to be represented, the Referee did not permit
    Claimant’s father to participate in the hearing. (C.R., Item No. 10, at 1.) There is
    no legal authority to support this decision. The Referee abused her discretion in
    prohibiting Claimant’s father from appearing on behalf of Claimant.
    The Referee’s error regarding representation, however, constitutes
    harmless error. Claimant did not submit evidence of his claim, challenge the hearsay
    objection on appeal to this Court, or explain what evidence Claimant’s father would
    have introduced had he been permitted to represent Claimant. It is particularly
    noteworthy that Claimant has not represented to this Court that his father had
    personal knowledge of the circumstances of Claimant’s separation from
    employment or planned to introduce testimony or other admissible evidence.
    8
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of
    June 15, 2005, P.L. 8, 43 P.S. § 774.
    9
    A claimant’s confidential information may not be disclosed to a representative unless the
    representative “present[s] a written authorization from the claimant or employer being
    represented.” 34 Pa. Code § 61.25(a)(7). The Pennsylvania Code provides three exceptions to the
    requirement of written authorization, but none of these exceptions are relevant to the present case.
    34 Pa. Code § 61.25(a)(7)(i-iii). Whether confidential information may be disclosed is a separate
    issue from whether a representative may represent a claimant at a hearing.
    7
    Claimant offers no explanation as to how his father’s participation at the hearing
    would have affected the outcome of the proceeding, and we cannot discern how the
    outcome would be different. Accordingly, any error in prohibiting Claimant’s father
    from appearing on behalf of Claimant is harmless.
    We next address whether the Referee and Board erred in concluding
    that Claimant did not have necessitous and compelling reasons to quit.
    Section 402(b) of the Law, pertaining to voluntary termination, provides, in part, that
    an employee shall be ineligible for compensation for any week “[i]n which his
    unemployment is due to voluntarily leaving work without cause of a necessitous and
    compelling nature.”       Claimant disputes that he voluntarily terminated his
    employment. Thus, we must first determine whether Claimant left his employment
    voluntarily.
    Whether Claimant’s separation from his employment is the result of a
    voluntary action or a discharge is a question of law subject to our review and must
    be determined based on the totality of the facts surrounding the termination of
    employment. Key v. Unemployment Comp. Bd. of Review, 
    687 A.2d 409
    , 412
    (Pa. Cmwlth. 1996). Pennsylvania case law has established “‘a finding of voluntary
    termination is essentially precluded unless the claimant had a conscious intention to
    leave his employment.’”       Monaco v. Unemployment Comp. Bd. of Review,
    
    565 A.2d 127
    , 129 (Pa. 1989) (quoting Roberts v. Unemployment Comp. Bd.
    of Review, 
    432 A.2d 646
    , 648 (Pa. Cmwlth. 1981)).            A claimant voluntarily
    terminates his employment when he resigns, leaves, or quits his employment without
    action by the employer. 
    Roberts, 432 A.2d at 648
    . To be interpreted as a discharge,
    there must be the immediacy and finality of a firing. Charles v. Unemployment
    Comp. Bd. of Review, 
    552 A.2d 727
    , 729 (Pa. Cmwlth. 1989).
    8
    Employer, through its representative, Equifax, as part of its “Employer
    Separation Response,” reported to the Service Center that Claimant had voluntarily
    quit a temporary position due to job dissatisfaction without discussing the matter
    with Employer prior to separation. (C.R., Item No. 2, letter from Equifax, dated
    June 8, 2018.) Claimant did not provide any information to the Service Center in
    response to the questionnaire sent to him by the Service Center, although he did
    submit an email to the Referee, sent July 5, 2018, wherein he appears to dispute that
    he did any work as part of his employment in what he referred to as Employer’s
    hiring pool.10 Additionally, Claimant did not explain what evidence his father would
    have provided, had he been permitted to represent Claimant, nor how having his
    father as a representative would have affected the proceeding. Given that neither
    Employer nor Claimant appeared at the hearing, the Referee considered the written
    information provided to her and found that Claimant had voluntarily left his
    employment while continuing work was available. Furthermore, the record is
    devoid of any evidence indicating that Employer terminated Claimant’s
    employment.
    A determination that Claimant voluntarily left his employment,
    however, is not an absolute bar to recovery of unemployment compensation benefits.
    Where the termination of employment is voluntary, in order to receive
    unemployment compensation benefits the claimant bears the burden of
    demonstrating that it was for a necessitous and compelling reason. Pennsylvania
    Gaming Control Bd. v. Unemployment Comp. Bd. of Review, 
    47 A.3d 1262
    , 1265
    10
    Although Claimant, in his email to the Referee, appeared to dispute that he worked for
    Employer from March 23, 2017, through March 31, 2017, as found by the Referee, Claimant does
    not dispute this employment in his brief to this Court. Rather, he takes the position that he was
    not well-suited to the employment, and he and Employer agreed that he would no longer continue
    in the position.
    9
    (Pa. Cmwlth.), appeal denied sub nom. 
    62 A.3d 381
    (Pa. 2012). Whether a claimant
    has a cause of a necessitous and compelling nature to voluntarily leave employment
    is a question of law subject to this Court’s review. (Id.) To establish cause of a
    necessitous and compelling nature, Claimant must establish: (1) circumstances
    existed that produced real and substantial pressure to terminate employment, (2) like
    circumstances would compel a reasonable person to act in the same manner, (3) the
    claimant acted with ordinary common sense, and (4) the claimant made a reasonable
    effort to preserve his employment. Procito v. Unemployment Comp. Bd. of Review,
    
    945 A.2d 261
    , 264 (Pa. Cmwlth. 2008).          Mere dissatisfaction with working
    conditions does not constitute cause of a necessitous and compelling nature for
    voluntarily terminating employment. McKeown v. Unemployment Comp. Bd. of
    Review, 
    442 A.2d 1257
    , 1258 (Pa. Cmwlth. 1982).
    Here, Claimant argues that the assignment was not what he expected
    and that the nature of the assignment was unsuitable, so he and Employer agreed that
    he would stop working the temporary assignment. As such, he contends that he did
    not voluntarily quit his employment, but that, if the Court were to conclude
    otherwise, he had necessitous and compelling reasons to do so given the unsuitable
    nature of the employment. This argument, however, is not supported by the record.
    The only evidence before the Referee and Board indicated that Claimant voluntarily
    terminated his employment due to dissatisfaction with the assignment. There is
    nothing in the record to show that Claimant had a necessitous and compelling reason
    for leaving his assignment. Rather, his reason was mere job dissatisfaction. Based
    on the record, limited as it may be, the Referee and Board determined that Claimant
    had voluntarily terminated his employment and did not establish cause of a
    necessitous and compelling nature to do so. Claimant attempts to provide additional
    10
    facts outside of the record to support his argument. Our review, however, is
    restricted to evidence of record. Based on the record, Claimant failed to demonstrate
    that he voluntarily terminated his employment for a necessitous and compelling
    reason.
    Accordingly, we affirm the order of the Board.
    P. KEVIN BROBSON, Judge
    Judge Covey concurs in the result only.
    11
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Brian E. Heckmann,                  :
    Petitioner     :
    :
    v.                       :   No. 1313 C.D. 2018
    :
    Unemployment Compensation           :
    Board of Review,                    :
    Respondent      :
    ORDER
    AND NOW, this 16th day of April, 2019, the order of the
    Unemployment Compensation Board of Review is AFFIRMED.
    P. KEVIN BROBSON, Judge
    

Document Info

Docket Number: 1313 C.D. 2018

Judges: Brobson, J.

Filed Date: 4/16/2019

Precedential Status: Precedential

Modified Date: 5/1/2019