S. O'Leary v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean O’Leary, :
Petitioner :
:
v. : No. 984 C.D. 2020
: SUBMITTED: September 23, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: October 27, 2021
Claimant, Sean O’Leary, petitions for review from the order of the
Unemployment Compensation Board of Review (UCBR) determining that he did
not show good cause for failing to appear at a hearing on an appeal of his claim for
benefits by Employer, Luzerne County Community College, and affirming the
decision of the Referee on the merits that Claimant was ineligible for unemployment
compensation benefits because his actions constituted willful misconduct under
Section 402(e) of the Unemployment Compensation Law.1 We vacate and remand
the matter for a determination on the merits.
1
Section 402(e) of the Law, 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 “an 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.”
In January 2020, Employer terminated Claimant’s employment for
absenteeism and tardiness. After Claimant’s dismissal, he applied for
unemployment compensation benefits. The Department of Labor and Industry’s
Scranton Unemployment Compensation Service Center approved benefits.
Employer appealed and a hearing was scheduled for April 27, 2020;2 the hearing was
originally to be held in person but was rescheduled telephonically due to the onset
of the COVID-19 pandemic—thus, all references to “nonappearance” refer to a
failure to participate in the telephonic hearing. The hearing notice listed Claimant’s
cell phone number and his attorney’s phone number as one ending in -4690.3 The
notice of hearing stated “THIS HEARING IS SCHEDULED BY PHONE.
PLEASE VIEW THE ATTACHED NOTE FOR DETAILED
INSTRUCTIONS.” [Notice of Hearing mailed April 13, 2020; Reproduced Record
“R.R.” at 59a (emphasis in original).] The notice included the following
instructions:
To EACH PARTY SCHEDULED to participate BY
TELEPHONE—
You must contact the Referee Office listed above
BEFORE THE HEARING if your telephone number listed
on this notice is INCORRECT or if no telephone number
appears on this notice.
• ON THE HEARING DATE please be by the telephone
and keep the line free at least fifteen (15) minutes before
the scheduled time. Have this notice and all related
documents available at that time.
2
The hearing was continued twice at the request of Claimant’s attorney.
3
By letter dated April 20, 2020 (which was also emailed to the Referee’s office), Claimant’s
attorney provided the Referee’s office with a phone number for the attorney’s participation in the
telephonic hearing, the number ending in -4690. (Reproduced Record “R.R.” at 69a, 71a.)
2
• Please be advised that the Referee will be calling parties
on a telephone line that will not display the originating
telephone number. Some telephones have the capability of
blocking incoming calls for which no originating number
is displayed. If your telephone blocks such calls and if you
expect to participate in the hearing by telephone, it is your
responsibility to ensure that you are able to accept the call
to participate in the hearing.
[Id.; R.R. at 59a-60a (emphasis supplied).]
On the day of the April 27, 2020 hearing, at the scheduled start time of
1:45 p.m., the Referee called Claimant’s attorney at least twice4 at the number he
provided but received the message “[y]our call has been forwarded to an automated
voice messaging system. [Phone number] is not available.” (April 27, 2020 “First
Hearing” Notes of Testimony “N.T.” at 1; R.R. at 289a.) The Referee left the
attorney a message during the second call. (Id.) The Referee also called Claimant
at the number for his cell phone twice but got a message that the number was not
available both times. (Id.) The Referee then proceeded with the hearing with only
Employer’s witness and counsel. During Employer’s witness’s testimony, the
Referee received a message that Claimant’s counsel had called her office and
provided a different telephone number where he could be reached. (First Hearing
N.T. at 7; R.R. at 295a.) The Referee was able to call and connect with Claimant’s
attorney, who stated that Claimant had “reached out to him” and “sent [the attorney]
a text,” continuing as follows:
[Claimant] asked if I was in on the call yet because he
hadn’t received a call. I told him, you know, no, not yet. It
could be there’s [sic] just running a little behind when a
few minutes later he texted me again that he received a
4
The transcript of the First Hearing indicates two calls were initially made, but the Referee’s
voicemail states that “[t]his is the third time I’m calling this number and the third time I’m
receiving voicemail.” (First Hearing Notes of Testimony at 1; R.R. at 289a.)
3
voicemail, but he, he never received a call. It just said that
it was the second attempt to reach him and also that two or
three attempts were made to reach me as well, but there
was no answer.
(First Hearing N.T. at 8; R.R. at 296a.) The Referee and Claimant’s attorney
discussed the situation and the attorney indicated that he had earlier given the
Referee’s office the wrong number—the one ending in -4690—when the correct
number ended in -4680. (First Hearing N.T. at 9; R.R. at 297a.) The attorney
indicated that the number the Referee had for Claimant was correct. (Id.) The
Referee called Claimant’s number again and got the same message that the number
was not available. (Id.) At that point, the call with Claimant’s attorney was
disconnected (there is no indication of who, if anyone, was at fault for the dropped
call). (Id.) The Referee then made the determination to proceed without further
attempt to contact Claimant or his attorney:
Okay. Is anybody else on the line except Mr. Anderson
[Employer’s counsel] and Ms. Hogan [Employer’s
witness]? Anybody else? All right. I, I’m going to—I
mean I attempted to contact Claimant three times. His
attorney provided the—provided a different number and
then it’s, it’s a—it’s a different number than he provided.
I’m, I’m not going to keep on going through this. I can’t.
I can’t seem to get all parties on the phone. So, I’m just
going to proceed with today’s hearing. So, there may be a
remand, unfortunately.
(First Hearing N.T. at 10; R.R. at 298a.) The hearing ended shortly thereafter.
The Referee issued a decision finding as follows with respect to the
merits of the case. (Referee’s Decision, Findings of Fact Nos. 1-5.) Claimant was
employed as a full-time security guard by Employer on December 12, 2019.
Employer had issues with Claimant’s attendance and provided him with written and
oral warnings, the most recent of which was in October 2019, after which Claimant
4
continued to have absenteeism and tardiness issues. Claimant failed to report or call
off from work on December 9, 2019. On December 12, 2019, Employer suspended
Claimant and, after an investigation on January 3, 2020, discharged Claimant due to
his attendance issues.
Claimant thereafter petitioned for appeal to the UCBR, asserting that
he never received a phone call that he was able to answer. The UCBR remanded the
matter, directing the Referee to conduct a hearing for the purposes of allowing
Claimant to explain his reason for nonappearance at the first hearing and to allow
the parties to provide new or additional testimony and evidence on the merits. A
second hearing was conducted at which Claimant, represented by a different
attorney, gave his explanation for his nonappearance at the first hearing and
presented his testimony and evidence on the merits of the case. (July 21, 2020
“Second Hearing” N.T.; R.R. at 436a-60a.5)
Claimant explained as follows:
I was standing by with my telephone—my cellphone, and
I was expecting a call. And rather than my phone ringing,
I ended up getting notifications every couple of minutes
through voicemails, excuse me, and I listened to them.
They were from an unknown—or it said unknown number.
I couldn’t identify, of course, where it was coming from.
But, then, I—when I listened to the voicemails, it became
5
Similar problems were encountered with Claimant’s phone numbers at the second hearing.
Claimant’s new attorney provided the cell phone number for Claimant (the same number as given
for the first hearing) and an alternate, backup home phone number. The Referee called Claimant
twice on his cell phone and heard a message that the number was not available. The Referee then
called Claimant’s alternate number and got the message that “[t]he party you are trying to reach
does not accept calls from numbers with Caller ID blocked. Please unblock your number by
dialing . . . .” (Second Hearing N.T. at 1; R.R. at 436a.) The new attorney was able to conference
in Claimant, after which the Referee attempted to call the alternate number again and received the
message concerning numbers with Caller ID blocked. (Second Hearing N.T. at 3; R.R. at 438a.)
The hearing proceeded with Claimant conferenced in through his attorney’s office.
5
evident to me that it was your office or that you were trying
to connect me into the hearing, which I reported to [his
then-attorney], and it kind of became clear to me that there
was some kind of an issue with the system.
(Second Hearing N.T. at 8; R.R. at 443a.) Claimant confirmed under questioning
by the Referee that his phone did not ring but that he received voice messages; that
he received the notice of the April 27, 2020 hearing; and that he let his attorney know
“what [he] was experiencing, that [he] was unable to connect or that there was
trouble connecting [him], for [the Referee’s] office to connect [him], and [he] was
making [his attorney] aware of that.” (Second Hearing N.T. at 8-9; R.R. at 443a-
44a.)
Claimant’s new attorney objected to, and moved to strike, the testimony
and exhibits offered by Employer at the first hearing because of the “technology
issues” which were “not any fault of his own nor of our office,”6 stating that to permit
the evidence was a due process violation. (Second Hearing N.T. at 8, 12; R.R. at
443a, 447a.) The Referee overruled Claimant’s counsel’s objection but permitted
cross-examination of Employer’s witness. Claimant then proceeded to offer
testimony and exhibits on the merits of his claim stating that his nonattendance and
failure to contact his supervisor was the result of medication issues attendant to a
medical problem.
The UCBR issued an order affirming the initial decision of the Referee.
(R.R. at 462a.) It declined to consider Claimant’s testimony on the merits offered at
the second hearing, stating “[C]laimant failed to appear because his phone did not
ring. The [UCBR] finds this is not good cause for the nonappearance. Parties are
responsible for their own technology and in charge of their phone and incoming
calls.” (Id.) Claimant then petitioned this Court for review.
6
Claimant’s new attorney was from the same firm.
6
On appeal, Claimant raises two issues: whether it was error for the
UCBR to have refused to consider his evidence on the merits and whether it was
error for the UCBR to deny his claim. We find the first issue dispositive.
In the first place, we do not believe that there is evidence that Claimant
“failed to appear” in any real sense—because of the pandemic, the hearing was
required to be telephonic. The evidence in the record indicates that Claimant was
doing exactly what he had been directed to do: waiting by his cell phone at the
appointed time for the call from the Referee’s office. Further, there is no evidence
that during the first hearing he failed to heed the directive of the hearing notice
regarding his cell phone’s ability to receive calls from a source with a Caller ID
block7—the record does not reflect the reason for the failure of his cell phone to ring.
Claimant’s undisputed testimony was that he did what he could to remedy the
situation “in real time,” as the hearing was being conducted in his absence. While
Claimant’s then-attorney certainly exacerbated the situation by failing to give a
correct number for himself, the fact remains that prior to the end of the hearing the
attorney had contacted the Referee’s office and explained the situation to the Referee
but was unable to further participate in the hearing because that call was dropped.
There is no indication in the record who was at fault for the dropped call at that
point8—merely that there was a dropped call and that no further attempts were made
to contact the attorney. At this point, neither Claimant nor his attorney could
participate because the telephone hearings were arranged in such a way that parties
7
During the second hearing, a message from an alternate home number for Claimant does
indicate that that number had such a block.
8
At one point during the first hearing, Employer’s witness also became disconnected. (First
Hearing N.T. at 9; R.R. at 297a.)
7
and their counsel could not call into the hearing but could only be connected when
the Referee called them.
Moreover, the UCBR does not cite—and our own review of UCBR
regulations fails to find—any authority for the proposition that “[p]arties are
responsible for their own technology and in charge of their phone and incoming
calls,” let alone any regulation suggesting that technological difficulties of unknown
cause9 can preclude a party from having his day in court. Even though an
administrative tribunal has discretion over how to conduct a hearing, there are still
“certain fundamental rights that must be honored, including the right to a fair hearing
in accordance with due process of law.” Collins v. Unemployment Comp. Bd. of
Rev., 415 A.2d 145, 146 (Pa. Cmwlth. 1980). While not involving a telephone
hearing, this Court in Collins found a violation of due process when a hearing was
conducted without the claimant and his attorney despite their presence in the
referee’s waiting room, and thus vacated the Board’s order and remanded for a new
hearing. Although not directly controlling, we find its analysis applicable here. See
also Hoover v. Unemployment Comp. Bd. of Rev., 509 A.2d 962, 963 (Pa. Cmwlth.
1986) (reversing for a new hearing where the use of a telephone in an unemployment
compensation hearing precluded the claimant from presenting documents into
evidence, and the referee “simply ignored the claimant’s proffer”).
9
The Board asserts that, in disregard of the notice sent to him, Claimant used a cell phone set
up to block unknown calls. This assertion would seem to be belied by the fact that the cell phone
(unlike Claimant’s house phone), rather than blocking the call, took and recorded at least two
voicemail messages. In any case, Claimant’s undisputed testimony reflects that he did not expect
the phone to block calls and was waiting for it to ring so that he could be connected. While it is
unclear here whether the problem was with Claimant’s cell phone or otherwise, the Board’s policy
which expects the average Unemployment Compensation claimant to have a sophisticated
understanding and proficiency in programing technological devices is patently unreasonable.
8
We recognize that the Referee was put in a difficult situation on the day
of the first hearing, given the obligation to connect multiple parties telephonically,
apparently without assistance. We do not fault her for her actions. However, that
the Referee herself encountered technological difficulties underscores the
unreasonableness of depriving Claimant of his right to present his case because he
was unable to receive her calls.
In light of the foregoing, we must conclude that on the facts of this case
the UCBR abused its discretion by refusing to consider Claimant’s testimony during
the remand hearing.10 Accordingly, we vacate the order of the UCBR and remand
for consideration of the merits of this claim on the evidence already adduced,11
including the testimony of Claimant at the second hearing.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
10
UCBR Rule of Procedure 101.24(a) provides in pertinent part: “[i]f a party who did not
attend a scheduled hearing subsequently gives written notice, which is received by the tribunal
prior to the release of a decision, and it is determined by the tribunal that his failure to attend the
hearing was for reasons which constitute ‘proper cause,’ the case shall be reopened.” 34 Pa. Code
§ 101.24(a). Here, it was not necessary to reopen the record because the Claimant had already
testified on remand regarding the merits and his counsel was able to cross-examine Employer’s
witness, so the rule is not directly applicable. However, its underlying purpose reinforces our
decision here.
11
On appeal, Claimant did not challenge the decision of the Referee to receive Employer’s
evidence without his participation. Therefore, we do not consider that issue. At all events, the
Referee afforded Claimant’s counsel an opportunity to cross-examine Employer’s witness.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean O’Leary, :
Petitioner :
:
v. : No. 984 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 27th day of October, 2021, the order of the
Unemployment Compensation Board of Review is VACATED and the matter
REMANDED for consideration on the merits in accordance with this opinion.
Jurisdiction relinquished.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita