E.J. LaRose v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward J. LaRose, :
Petitioner :
:
v. : No. 315 C.D. 2021
: Submitted: September 3, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 29, 2021
Petitioner Edward J. LaRose (Claimant) petitions, pro se, for review of an
order of the Unemployment Compensation Board of Review (Board), dated
December 31, 2020, which affirmed a decision by an unemployment compensation
referee (Referee), denying Claimant benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law).1 For the reasons set forth below, we
affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) of the Law provides, in part, that “[a]n employe[e] 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.”
I. BACKGROUND
Claimant was employed as a carpenter for Roba Family Farms2 (Employer)
from March 11, 2020, until his separation from employment on June 8, 2020. (C.R.
at 12.) Claimant subsequently filed a claim for unemployment compensation
benefits, reporting that he quit his position because Employer was causing him to
work in harmful conditions without proper protective equipment. (Id. at 11-18.)
Employer reported that Claimant quit voluntarily and without explanation. (Id. at
21, 23.) The Scranton UC Service Center (Service Center) thereafter denied
Claimant unemployment benefits pursuant to Section 402(b) of the Law, concluding
that Claimant voluntarily quit his position to seek other work. (Id. at 25.) Claimant
appealed the Service Center’s determination, and a telephonic hearing was held
before the Referee. (Id. at 30, 39, 52.) Claimant and a witness for Employer
appeared at the hearing. (Id. at 59.)
At the hearing, Claimant testified that Jeff Roba, one of the owners of
Employer, hired Claimant. (C.R. at 61.) Claimant explained to Jeff Roba that he
recently had a heart attack/stroke, and his health condition limited what he was able
to do physically.3 (Id. at 60-61.) Specifically, Claimant explained that the heart
attack/stroke caused him to have atrial fibrillation that made him averse to dust and
smoke. (Id. at 61.) Claimant testified that, as part of his employment, he and a
2
We note that Employer’s business name is used inconsistently throughout the certified
record as “Roba Family Farm Inc.,” “Roba Family Farms,” and “Roba Tree Farm, Inc.” (See, e.g.,
Certified Record (C.R.) at 21, 25, 39.) The Pennsylvania Department of State corporate database
provides that Employer’s fictitious business name is Roba Family Farms, however, and we have,
therefore, used that fictitious business name here.
3
While explaining that he recently had a heart attack/stroke, Claimant also noted that his
memory had been affected and that he was having trouble remembering specific dates.
(C.R. at 59-60.) The Referee then asked Claimant whether he was able to continue testifying at
the hearing, to which Claimant responded that he was “able to go on.” (Id. at 60.)
2
coworker were building trashcan receptacles, and Claimant was sawing pressure-
treated lumber. (Id. at 63.) While performing that work, he breathed in a significant
amount of sawdust. (Id.) Claimant stated that it caused him to become ill, he ended
up going to the hospital for treatment for his heart, and he was out of work for
approximately nine days. (Id.) Claimant maintained contact with Jeff Roba during
this time, and he explained that he believed the sawdust had caused his illness. (Id.)
According to Claimant, Jeff Roba told Claimant that something would be done to
limit the amount of dust in the work area, but when Claimant returned to work after
recovering, he found that “nothing had changed as far as . . . the dust.” (Id. at 64.)
As a result, Claimant moved his workstation outside and continued sawing there.
(Id.)
Claimant testified that he was not given any protective equipment to prevent
further illness or aggravation from the sawdust. (C.R. at 67.) Claimant stated that
he was later asked to spray a barn with a weatherproofing agent, and, again, he was
not given protective equipment. (Id.) Claimant asked his coworker, who Claimant
believed to be his supervisor or foreman, whether protective equipment was
available, but the coworker told him that none of the protective equipment would fit
him. (Id. at 65, 67.) Claimant admitted, however, that he did not ask Jeff Roba or
any of Employer’s owners whether protective equipment was available. (Id.)
Instead, Claimant relied on the statement from the coworker. (Id.)
Claimant further explained that Employer had plans to build several new
buildings, but the work was supposed to be subcontracted to other construction
companies. (C.R. at 64-65.) Nevertheless, Claimant was required to do masonry
work, which caused him to damage his knee and miss work for a day. (Id.) After
returning, Claimant stated that he told his coworker (who he believed to be his
3
supervisor or foreman) that he was not hired to do the extra projects that were
supposed to be subcontracted out, that the extra projects were too demanding on his
body, and that he would have to quit his position. (Id.) Claimant never contacted
Jeff Roba to inform him he was quitting. (Id. at 65.) Again, Claimant only spoke
with his coworker.
Susan Roba, another one of Employer’s owners, then testified as to the
circumstances surrounding Claimant’s departure. (C.R. at 54.) Susan Roba stated
that Claimant left without informing any of the owners or his actual supervisor, Jeff
Roba, that he was quitting his position. (Id. at 70.) Susan Roba confirmed to the
Referee that the individual Claimant believed to be his supervisor was simply
another employee. (Id.) Susan Roba stated that, at the time Claimant was hired,
Employer’s owners were unaware that Claimant recently had suffered a heart
attack/stroke, but they later learned of the issue after Claimant went out sick.
(Id. at 71.) As it concerns protective equipment, she testified:
[W]e offer everything to our employees, and they’re asked if they want
any . . . masks or what they would need, and it’s provided for them. We
have . . . hazmat suits. We have masks here, so it was not brought to
our attention that he was denied [protective equipment].
(Id.)
The Referee thereafter gave Claimant an opportunity to respond to Susan
Roba’s testimony, during which he insisted that he informed Employer at the time
he was hired that he had issues with his heart. (Id. at 72.) Claimant further stated
that he only asked his coworker about the protective equipment because Jeff Roba
worked at a different farm, Claimant did not have a cell phone, and he did not think
to go the main office to ask Susan Roba. (Id. at 72-73.) Thus, he relied on the
statement from the coworker who he thought was his supervisor. (Id. at 73.) Susan
Roba was also given a rebuttal opportunity, during which she maintained that
4
Employer has always had an open-door policy and that Employer was hands-on in
issuing protective equipment to employees who needed it. (Id. at 74.) She further
stated that Claimant was aware that she was in the main office and that she would
have aided him if requested. (Id.) She, therefore, disagreed with Claimant’s
testimony that he did not have other means of obtaining protective equipment. (Id.)
After the hearing, the Referee issued a decision concluding that Claimant was
ineligible for unemployment benefits pursuant to Section 402(b) of the Law.
(C.R. at 79.) In so doing, the Referee issued the following findings of fact:
1. The claimant worked as a full-time carpenter for [the employer] from
March 11, 2020[,] until [June 8, 2020] . . . .
....
3. The claimant’s primary job duties were to perform carpentry projects
for the employer.
....
5. When the claimant was hired by the employer, the claimant informed
one of the employer’s owners that he had previously suffered a heart
attack and may have difficulty performing some job tasks.
....
9. . . . [T]he claimant . . . had atrial fibrillation . . . , which is an irregular
heartbeat.
10. Due to the claimant’s atrial fibrillation, [he] was absent from work
for approximately nine days.
11. . . . [T]he claimant was performing his job duties and . . . had
difficulty breathing due to sawdust.
12. The claimant notified one of the employer’s owners about the
sawdust and was allowed to move equipment outside to perform his job
duties.
13. The claimant spoke with another employee who he believed was his
supervisor about personal protective equipment.
14. The claimant’s coworker informed [him] that the employer had
hazmat suits but that they would not fit the claimant.
5
15. The claimant did not ask the employer’s owners about the
information provided to him by his coworker and did not ask if the
employer had hazmat suits and/or personal protective equipment such
as facemasks and face shields.
16. On June 8, 2020, the claimant was performing masonry work and
had difficulty performing his job duties due to problems with his knees.
17. On June 8, 2020, the claimant informed his coworker that he was
leaving his employment because he did not believe his health would
allow him to continue [working] for the employer.
18. The claimant did not contact the employer’s owners about his
problems performing his job duties on June 8, 2020[,] prior to leaving
work without notification to the employer’s owners.
19. The employer had continuing work available for the claimant had
he not resigned his employment.
(Id. at 77-78.)
The Referee, in concluding that Claimant did not prove cause of a necessitous
and compelling nature to voluntarily quit his employment, reasoned as follows:
Although the referee understands the claimant’s health problems, the
claimant failed to provide any plausible explanation about why he did
not question the employer’s owners about whether they had hazmat
suits and personal protective equipment. Even though the claimant’s
coworker who the claimant believed was his supervisor informed him
that they did not, the employer’s owner testified [that] the employer
does have hazmat suits and personal protective equipment which would
fit the claimant. Also, the referee finds that the claimant failed to
provide any plausible explanation about why he left work on
June 8, 2020[,] without any notification to the employer’s owners to
rectify any concerns the claimant may have had. Based upon the
testimony and the documentary evidence in the record, the referee finds
the claimant did not exhaust alternatives to maintain his employment.
(C.R. at 79.)
Claimant appealed the Referee’s decision to the Board. The Board amended
finding of fact 11 to provide that “[t]he claimant attributed his illness to sawing
pressure-treated lumber and the build[-]up of dust at work,” and finding of fact 12
6
to provide that “[a]fter the claimant returned to work, he moved his equipment and
cutting outside so the dust wouldn’t build up.” (C.R. at 98.) The Board otherwise
adopted the Referee’s findings of fact and conclusions of law and affirmed the
Referee’s decision. (Id. at 98-99.) As to additional allegations of fact that Claimant
first introduced in his brief on appeal to the Board, the Board determined that it could
not consider the allegations because they constituted hearsay and the allegations
were not presented at the Referee hearing. (Id. at 98.) As to Claimant’s assertion
that his health prevented him from being clear about the factual scenario at the time
of the Referee hearing, the Board further observed that the Referee specifically asked
Claimant if he was able to testify at the hearing in light of his health, and Claimant
responded that he was able. (Id.) Thus, the Board rejected this assertion. (Id.)
In addition, the Board then provided the following reasoning for its denial of
benefits:
Perhaps, the most critical aspect of the case is whether the
claimant reasonably believed that his coworker was a supervisor or
foreman with whom he could discuss safety issues or his reasons for
quitting. The Board is unable [to] agree that the record established that
this individual was a supervisor or an agent for the employer. First, the
claimant does not clearly express how he came to view this individual
as a supervisor. Second, the claimant “guess[ed]” the coworker was his
foreman. Third, the claimant was interviewed by and discussed his call
offs due to [atrial fibrillation] “almost every day” with . . . Jeff [Roba],
who was one of the owners. Accordingly, the Referee correctly found
that the claimant left his employment without notification to the owners
to possibly rectify his concerns.
The claimant also did not establish good cause for failing to bring
his new or continuing safety concerns to one of the owners at or near
the time he quit. He complained that Jeff [Roba] was not there a lot as
he worked on a different farm. Yet, he was able to speak to Jeff [Roba]
almost every day when he was off work in May. As to [Susan Roba],
the other owner, the claimant testified that she was only there
sometimes. However, the claimant admitted that he did not go to the
7
office to inquire if the owner was there so he could talk to him. The
claimant also lamented that when he told Jeff [Roba] they needed
masks, Jeff [Roba] said he was going to clean it up but didn’t mention
they had masks. The claimant, however, testified that he addressed the
dust problem by moving his equipment and cutting outside, and [he]
continued to work there even though it wasn’t cleaned up.
The Referee made extensive findings from the testimony. While
the claimant disputes the accuracy of certain findings, and tries to offer
his version of events, the key inquiry is whether the findings made by
the Referee are supported by the testimony and evidence; not whether
the testimony might lend itself to support different findings. The Board
determines that the Referee’s findings, as corrected above in two
instances, are adequately supported by the record. Accordingly, the
Board enters the following order:
The decision of the Referee is affirmed.
(C.R. at 99.) Claimant now petitions this Court for review.4
II. ISSUES ON APPEAL
On appeal,5 Claimant essentially contends that: (1) substantial evidence of
record does not support the Board’s finding that Claimant’s coworker was not his
supervisor and the Board’s restatement of findings of fact 11 and 12; (2) the Board
erred as a matter of law in holding that Claimant’s health issues were not cause of a
necessitous and compelling nature to quit his employment; and (3) the Referee erred
4
Prior to appealing to this Court, Claimant filed a request for reconsideration of the Board’s
order, which the Board denied as untimely pursuant to Section 101.111 of the Board’s
regulations, 34 Pa. Code § 101.111. Claimant has not appealed the Board’s denial of his request
for reconsideration.
5
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. 2 Pa. C.S. § 704.
8
in failing to properly conduct the Referee hearing in light of Claimant’s health
issues.6
III. DISCUSSION
A. Substantial Evidence
In an unemployment compensation case, the Board’s findings of fact
are binding on appeal if the findings, after reviewing the record as a whole,
are supported by substantial evidence. Brandt v. Unemployment Comp. Bd. of
Rev., 643 A.2d 78, 79 (Pa. 1994). Substantial evidence has been defined by this
Court as “relevant evidence upon which a reasonable mind could base a conclusion.”
Johnson v. Unemployment Comp. Bd. of Rev., 502 A.2d 738, 740
(Pa. Cmwlth. 1986). We examine the evidence and testimony in the light most
favorable to the prevailing party, giving that party the benefit of any inferences
logically and reasonably drawn from the evidence. Id. In determining whether the
Board erred in issuing its findings, this Court is bound by the record below, and we
cannot accept allegations of fact in a brief on appeal that are not supported by record
evidence. Hollingsworth v. Unemployment Comp. Bd. of Rev., 189 A.3d 1109,
1112-13 (Pa. Cmwlth. 2018). Lastly, the critical consideration in assessing the
Board’s findings is not whether evidence exists in the record that could support a
contrary finding, but rather, whether there is evidence to support the findings the
Board made. Rodriguez v. Unemployment Comp. Bd. of Rev., 174 A.3d 1158, 1163
(Pa. Cmwlth. 2017).
Claimant first argues that the record lacks substantial evidence to support the
Board’s finding that Claimant’s coworker was not a supervisor or agent for
6
To the extent Claimant argues that the unemployment compensation system “unfairly
hobble[s] workers,” we note that such policy claims are not proper for this Court to consider, as
they are outside the Court’s standard of review.
9
Employer. In furtherance thereof, Claimant essentially contends that the coworker
was the person he reported to on a daily basis, and it was, therefore, reasonable for
him to believe that the individual was his supervisor. The Board responds that
Claimant did not sufficiently establish that the coworker was a supervisor. The
Board observes, rather, that Claimant’s testimony was that he “guess[ed the
coworker was his] supervisor” or “foreman.” (Board’s Brief at 9 (quoting C.R.
at 64-65).) The Board further observes that Claimant reported to Jeff Roba when he
was ill and that Jeff Roba explained Claimant’s role to him when he was hired.
Based on Claimant’s testimony in this regard, the Board insists that substantial
evidence supports its finding that the coworker was not a supervisor or agent of
Employer. We agree with the Board.
At the outset, we reiterate that allegations of fact that are not supported by
record evidence cannot be considered by this Court in assessing whether the Board
erred in issuing its findings. Hollingsworth, 189 A.3d at 1112-13. After careful
review of the record, Claimant’s assertion in his brief to this Court that he reported
to the coworker on a daily basis for his job duties was not set forth in Claimant’s
testimony or otherwise established in the record. We, therefore, cannot accept
Claimant’s allegation as fact. Id. Moreover, Claimant’s testimony patently
demonstrates that it was simply his “guess” that the coworker was his supervisor or
foreman. (C.R. at 64-65.) We further agree with the Board that Claimant’s
testimony reveals that Jeff Roba was the individual who hired him, that he reported
to Jeff Roba when he was ill, and that Claimant’s position was explained to him by
Jeff Roba, all of which suggest that Jeff Roba was the individual operating in a
supervisory and/or managerial function, not the coworker. (See id. at 61, 63-65.)
Thus, based on our review of the record as a whole, we conclude that the record
10
supports the Board’s finding that Claimant’s coworker was not a supervisor or agent
for Employer. Brandt, 643 A.2d at 79.
Claimant next contends that substantial evidence of record does not support
the Board’s amendment of finding of fact 11 to provide that “[t]he claimant
attributed his illness to sawing pressure-treated lumber and the build[-]up of dust at
work” and finding of fact 12 to provide that “[a]fter the claimant returned to work,
he moved his equipment and cutting outside so the dust wouldn’t build up.”
(C.R. at 98.) Instead, Claimant argues that finding of fact 11 should provide that
“[t]he claimant’s doctors attributed his illness to sawing pressure-treated lumber and
the build[-]up of dust,” and that finding of fact 12 should indicate that Claimant was
instructed by Jeff Roba and Claimant’s coworker to move the operation outside.
(Claimant’s Brief at 23 (emphasis in original).) Again, however, neither of these
assertions are supported by record evidence.
Claimant never testified that the doctors he consulted with specifically linked
his illness and atrial fibrillation to the inhalation of sawdust or weatherproofing
spray, and he submitted no medical documentation at the Referee hearing
establishing that this was the case. Claimant only testified that it was his belief that
the sawdust caused the illness that led to him missing roughly nine days of work.
(See C.R. at 63-64.) Moreover, Claimant did not testify that Jeff Roba or the
coworker instructed him to move his sawing operation outside; instead, he did it of
his own accord after returning to work and finding his workstation unchanged from
its previous state. (Id. at 64.) Claimant now contradicts his previous testimony in
his brief on appeal, but as noted previously, we cannot consider such allegations as
fact. Hollingsworth, 189 A.3d 1112-13.
11
Finally, as noted above, it is irrelevant whether evidence exists in the record
that could support a contrary factual finding. Rodriguez, 174 A.3d at 1163. Our
inquiry is focused, rather, on whether the Board’s findings have factual support in
the record. Id. Here, it is evident that the Board’s finding that Claimant’s coworker
was not a supervisor or agent of Employer and the Board’s amendments to findings
of fact 11 and 12 are supported by substantial evidence. Brandt, 643 A.2d at 79.
B. Voluntary Resignation
We next consider whether Claimant had cause of a necessitous and
compelling nature to voluntarily terminate his position. As noted previously, under
Section 402(b) of the Law, an employee is ineligible for unemployment benefits for
any week “[i]n which his unemployment is due to voluntarily leaving work without
cause of a necessitous and compelling nature.” In a voluntary termination case, the
claimant has the burden of proving the right to unemployment compensation.
St. Clair Hosp. v. Unemployment Comp. Bd. of Rev., 154 A.3d 401, 404
(Pa. Cmwlth. 2017) (en banc).
This Court has held that, “[t]o establish health problems as a compelling
reason to quit, the claimant must (1) offer competent testimony that adequate health
reasons existed to justify the voluntary termination, (2) have informed the employer
of the health problems and (3) be available to work if reasonable accommodations
can be made.” Lee Hosp. v. Unemployment Comp. Bd. of Rev., 637 A.2d 695, 698
(Pa. Cmwlth. 1994). “Further, in such cases, once an employee makes an employer
aware of such health problems, the employer bears the burden to establish that it
made a reasonable attempt to identify and propose possible accommodations for the
employee’s health problems.” Watkins v. Unemployment Comp. Bd. of Rev.,
65 A.3d 999, 1005 (Pa. Cmwlth. 2013). Where the claimant has “failed to take all
12
necessary and reasonable steps to preserve the employment relationship,” he cannot
demonstrate a necessitous and compelling reason for leaving his job and is ineligible
for benefits. PECO Energy Co. v. Unemployment Comp. Bd. of Rev., 682 A.2d 58,
61 (Pa. Cmwlth. 1996). “Each case must be examined on an individual basis to
understand the exigencies the claimant faced at the time [he] decided to separate
from employment.” Kelly v. Unemployment Comp. Bd. of Rev., 172 A.3d 718, 723
(Pa. Cmwlth. 2017), appeal denied, 184 A.3d 547 (Pa. 2018).
Claimant argues that his health conditions constituted cause of a necessitous
and compelling nature to voluntarily terminate his employment, because Employer
was aware of his health conditions but did not take steps to accommodate them. In
support of his contention that Employer was aware of his health conditions, Claimant
focuses on conversations he had with Jeff Roba at the time Claimant was hired and
during the time Claimant was off work due to illness purportedly related to sawdust,
as well as conversations he had thereafter with his coworker regarding the types of
responsibilities that, Claimant asserted, were beyond the capabilities of his health.
As to his contention that Employer failed to accommodate his health conditions,
Claimant’s approach is two-fold. First, Claimant focuses on the fact that Employer
did not provide him with protective equipment, asserting that it was reasonable for
him to rely on the statement from his coworker that there was no protective
equipment available. In addition, Claimant maintains that Employer tasked
Claimant with responsibilities that Employer knew were beyond the capabilities of
his health, as Claimant had discussed with his coworker, such as masonry work and
erection of new buildings.
Employer responds that Claimant did not sufficiently communicate to
Employer the difficulties he was having with his health, such that Claimant failed to
13
prove that he had cause of a necessitous and compelling nature to voluntarily
terminate his employment. Employer notes that Claimant was in contact with Jeff
Roba throughout his employment but, nonetheless, failed to inform him that he could
not perform his assigned job responsibilities. Thus, Employer argues that Claimant
did not take all necessary and reasonable measures to preserve his employment.
Furthermore, as it concerns job suitability, Employer contends that, under this
Court’s precedent, Claimant acquiesced in the suitability of his position when he
accepted it and that Claimant had an obligation to report his dissatisfaction and/or
inability to perform his position prior to voluntarily quitting. (Board’s Brief at 13
(citing Miller v. Unemployment Comp. Bd. of Rev., 580 A.2d 920, 921
(Pa. Cmwlth. 1990).)
The Board is the ultimate fact-finder in unemployment compensation matters
and is empowered to resolve all conflicts in evidence, witness credibility, and weight
accorded the evidence. Dumberth v. Unemployment Comp. Bd. of Rev.,
837 A.2d 678, 681 (Pa. Cmwlth. 2003) (en banc). Witness credibility is solely
within the Board’s province, and credibility determinations cannot be disturbed on
appeal. First Fed. Sav. Bank v. Unemployment Comp. Bd. of Rev., 957 A.2d 811,
815 (Pa. Cmwlth. 2008), appeal denied, 970 A.2d 1148 (Pa. 2009). Here, the Board
determined that Claimant did not establish that his coworker was a supervisor or an
agent for Employer. Based upon that determination, the Board essentially found that
Claimant did not inform Employer of his continuing concerns regarding his health
or additional accommodations Claimant believed he required because he only
discussed safety issues and his reasons for quitting with his coworker. This
determination of credibility and resolution of the testimony is, as noted above, within
the province of the Board as fact-finder and cannot be disturbed on appeal. Thus,
14
because Claimant did not inform Employer, Claimant “failed to take all necessary
and reasonable steps to preserve the employment relationship” and, therefore, cannot
demonstrate a necessitous and compelling reason for leaving his job and is ineligible.
PECO Energy Co., 682 A.2d at 61.
Accordingly, the Board did not err in concluding Claimant did not have cause
of a necessitous and compelling nature to leave his employment.
C. Referee Hearing
As it concerns the conduct of referee hearings, a referee is obligated under
Section 101.21 of the Board’s regulations, 34 Pa. Code § 101.21, to aid a pro se
claimant at a referee hearing to express his rights and develop the factual record.
Bennett v. Unemployment Comp. Bd. of Rev., 445 A.2d 258, 259 (Pa. Cmwlth. 1982).
As this Court instructed in Bennett:
The referee has a responsibility . . . to assist a pro se claimant at a
hearing so that the facts of the case necessary for a decision may be
adequately developed to “[e]nsure that compensation will not be paid
in cases in which the claimant is not eligible and that compensation will
be paid if the facts, thoroughly developed, entitled the claimant to
benefits.”
Id. (emphasis omitted) (quoting Robinson v. Unemployment Comp. Bd. of Rev.,
431 A.2d 378, 380 (Pa. Cmwlth. 1981)). To make this determination, courts
generally consider the referee’s approach in questioning the parties—i.e., “the
manner in which the hearing was conducted.” Hackler v. Unemployment Comp. Bd.
of Rev., 24 A.3d 1112, 1116 (Pa. Cmwlth. 2011) (quoting Unemployment Comp. Bd.
of Rev. v. Ceja, 427 A.2d 631, 632 (Pa. 1981)). For example, courts have recognized
that a referee’s failure to afford a pro se claimant a meaningful opportunity to testify,
to question the claimant concerning critical facts, and to allow the claimant to
express the rights afforded to him at the hearing, results in the referee’s conduct
15
falling below the standard set forth in Section 101.21 of the Board’s regulations.
See id.Presently, we find no such error in the Referee’s conduct of the hearing.
While Claimant contends that the Referee erred in conducting the hearing based on
the fact that Claimant had a heart attack/stroke and was having difficulty with his
memory, the Referee specifically asked Claimant whether he was able to continue
in his testimony, to which Claimant responded that he was able. We further disagree
with Claimant that the Referee did not properly aid him in developing a sufficient
factual record. The Referee questioned Claimant extensively regarding the
circumstances surrounding his termination and his health, he posed relevant
questions to Susan Roba to further develop the record, and he allowed for rebuttal
testimony from both parties. Indeed, based alone on the Referee’s significant factual
findings, it is clear that the Referee engaged in a diligent effort to develop a sufficient
factual record. (See C.R. at 77-78.) Finally, at the start of the hearing the Referee
specifically apprised Claimant of his rights, stating:
You have the right to be represented by an attorney or other non-legal
advisor of your own choosing. You have the right to present testimony
and evidence on your own behalf as well as that of witnesses, . . . you
have the right to question those witnesses, and you have the right to
question or cross-examine any opposing party.
(C.R. at 55.) Claimant informed the Referee that he was aware of these rights. (Id.)
Thus, had Claimant wished to have his wife or an attorney present to help him with
his testimony, he could have requested such representation. For all these reasons,
the Referee did not err in his conduct of the hearing.
16
IV. CONCLUSION
For the reasons set forth above, the decision of the Board is affirmed.
P. KEVIN BROBSON, President Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward J. LaRose, :
Petitioner :
:
v. : No. 315 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 29th day of December, 2021, the order of the Unemployment
Compensation Board of Review, dated December 31, 2020, is AFFIRMED.
P. KEVIN BROBSON, President Judge