Opinion
No. 1128 C.D. 2013
06-20-2014
Gilbert O. Catron, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Gilbert O. Catron (Claimant) petitions for review of an adjudication of the Unemployment Compensation Board of Review (Board) denying his claim for unemployment compensation benefits. The Board initially affirmed the Referee's June 21, 2012, decision that Claimant was not eligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law) because he had shared a client's proprietary information with another client in violation of accepted ethical standards. On remand to permit Claimant to explain his nonappearance at the first hearing, the Board found that he lacked good cause and declined to address the merits of Claimant's evidence or argument. Because we find that Claimant did, in fact, provide evidence of good cause for his nonappearance, we vacate and remand.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). It provides, in relevant part, as follows:
An employe shall be ineligible for compensation for any week -
43 P.S. §802(e)
* * *
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work . . . .
Claimant was employed by GMS Mine Repair & Maintenance, Inc. (Employer) as a Regional Safety Supervisor from October 2011 until he was terminated on March 30, 2012. On April 12, 2012, Claimant applied for unemployment benefits. The Erie UC Service Center denied benefits on April 30, 2012, and Claimant appealed. A telephone hearing was scheduled for June 18, 2012. Susan Bealko, Employer's Corporate Safety Director, appeared on behalf of Employer and presented evidence. Claimant did not appear at the hearing. The Referee called Claimant twice at the telephone number indicated on the notice of hearing but was unable to reach him.
Jeffrey Giacobe, Employer's Human Resources Director, also appeared on behalf of Employer but did not testify.
Regarding the merits of the case, Bealko testified that Claimant attended a meeting with a client to discuss, among other things, the development of a cutting and welding program for the client's mine. Bealko stated that after the meeting and without approval, Claimant gave this client a cutting and welding program that Employer had developed for another client, who was a competitor of this client. According to Bealko, Claimant's actions were "extremely unethical;" she would never have approved sharing one client's proprietary information with a competitor of that client.
Approximately two hours after the hearing was scheduled to begin, Claimant's attorney at the time, Stephen New, telephoned the Referee's office. Attorney New inquired as to why the Referee had not yet called his office for the telephonic hearing. Informed that the hearing was over, Attorney New immediately faxed and mailed a letter to the Referee requesting that the record be reopened. The Referee denied the request and issued a decision on June 21, 2012, holding Claimant ineligible for benefits under Section 402(e). Claimant appealed to the Board, which adopted the Referee's findings of fact and conclusions of law in their entirety and affirmed the Referee's decision. Claimant then petitioned for this Court's review. The Board requested this Court to remand the matter, explaining that it had not considered the material facts surrounding Claimant's nonappearance. We granted the Board's request for remand on January 4, 2013.
The Board remanded the matter to the Referee to hold a new hearing. The remand hearing was held by telephone on March 25, 2013. The Referee asked Claimant to provide testimony regarding his nonappearance at the first hearing on June 18, 2012. Claimant introduced the letter Attorney New had sent the Referee on June 18, 2012, after the original hearing. In the letter, Attorney New stated:
Claimant was represented by new counsel at the remand hearing.
The letter itself is dated June 6, 2012, but the postmark date is June 18, 2012.
[o]n Friday, June 15, 2012, I called [the Referee's] office to inquire as to whether I may appear before [the Referee] without being licensed to practice law in the Commonwealth of Pennsylvania. I was advised that I could represent [Claimant] and I advised [the Referee's] staff at that time to the number to
be called at the time of the scheduled hearing. [The Referee's] office indicated that this would not be a problem.Certified Record Item No. 13. Furthermore, Attorney New indicated that
[o]n Monday, June 18, 2012, [Claimant] appeared at my office at 10:15 a.m. waiting for the call given the fact [the Referee's] office had told us that the call may be delayed. We waited for some time to contact [the Referee's office], however, when we did we had been advised that the hearing had taken place . . . ."Id. No record of the June 15 call exists in the Bureau's records other than Attorney New's letter. However, the letter was admitted at the hearing without objection. Claimant then testified that he was at Attorney New's office awaiting the call from the Referee, corroborating the account in Attorney New's June 18, 2012, letter. Claimant and Employer then provided testimony and evidence regarding the merits of the case.
The phone number listed for Claimant on the Notice of Hearing is his home number. Attorney New allegedly tried to change the phone number to Attorney New's office number.
The Board issued a decision on June 4, 2013, upholding the Referee's original June 21, 2012, decision denying benefits. The Board held that Claimant failed to produce corroborating evidence of his "bare assertion" that Attorney New had called the Referee's office on June 15, 2012, "such as former counsel's phone records or counsel's sworn testimony that he called." Board Decision and Order, June 4, 2013, at 2. As a result, the Board held that Claimant lacked good cause for his nonappearance at the June 18, 2012, hearing and refused to consider Claimant's testimony at the remand hearing regarding the merits of his appeal. Consequently, the Board found that Claimant "violated a known standard by sharing with a client proprietary information belonging to the client's competitor." Id. at 3. Claimant now petitions this Court for review.
In unemployment compensation appeals, our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether errors of law were committed, or whether findings of fact are supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841, 843 (Pa. Cmwlth. 1987). "Substantial evidence is evidence which a reasonable mind might accept as adequate to support a conclusion." Wheelock Hatchery, Inc. v. Unemployment Compensation Board of Review, 648 A.2d 103, 105 n.3 (Pa. Cmwlth. 1994).
On appeal, Claimant argues that the Board capriciously disregarded substantial evidence that Claimant had good cause for not appearing at the June 18, 2012, hearing. Alternatively, Claimant argues that the notice of hearing sent to Claimant was deficient.
It is axiomatic in unemployment compensation cases that the findings of fact made by the Board are conclusive on appeal, so long as the record as a whole contains substantial evidence to support those findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829, 831 (Pa. 1977). The Board is the ultimate arbiter regarding the weight to be given to evidence and the credibility of witnesses. Borello v. Unemployment Compensation Board of Review, 417 A.2d 205, 211 (Pa. 1980). The Board may therefore reject the testimony of any witness, even if uncontradicted. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010).
However, the Board may not ignore the "overwhelming evidence in favor of a contrary result not supported by the evidence." Borello, 417 A.2d at 211. This Court has stated that the Board capriciously disregards evidence if the Board "deliberately disregard[s] competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important." Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007).
The regulation at 34 Pa. Code §101.51 provides that a hearing may be held in the absence of a party whose absence lacks "proper cause," and the decision may be based upon the available evidence. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436, 439 (Pa. Cmwlth. 2000). This Court has repeatedly held that "a party's own negligence is not sufficient 'good cause' as a matter of law for failing to appear at a Referee's hearing." Eat'N Park Hospitality Group, Inc. v. Unemployment Compensation Board of Review, 970 A.2d 492, 494 (Pa. Cmwlth. 2008).
It states:
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.34 Pa. Code §101.51.
Claimant argues that he established good cause for his nonappearance at the June 18, 2012, hearing. Specifically, Claimant contends that Attorney New submitted the letter dated June 18, 2012, explaining why the Referee was unable to reach Claimant by telephone for the hearing; that letter was admitted without objection at the March 25, 2013, remand hearing. Further, Claimant's testimony at the remand hearing corroborated the statements in Attorney New's letter. Claimant contends the Board capriciously disregarded this competent, uncontradicted evidence.
The Board counters that Claimant had the burden of updating his phone number and, further, Claimant admitted at the remand hearing that he was not at the phone number shown on the notice of hearing. Thus, it contends that Claimant was negligent in not updating his contact number. Furthermore, Claimant failed to present "more reliable" evidence that Attorney New called the Referee's office on June 15, 2012, to update Claimant's contact number, such as Attorney New's telephone records or a sworn statement from Attorney New. Noting that other calls from Employer and Attorney New to the Referee's office were documented in Department records, the Board argues that the absence of a record of a June 15, 2012, call is fatal. In short, the Board argues that it did not capriciously disregard Claimant's evidence but, rather, rejected it.
The present case is different from cases where the claimant was absent from a hearing because he overslept or was mistaken regarding the date. See e.g., Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 47 n.12 (Pa. Cmwlth. 2012); Fetrow v. Unemployment Compensation Board of Review, (Pa. Cmwlth., No. 2338 C.D. 2012, filed July 29, 2013). In those cases, this Court held that the claimants were negligent and therefore their assertions were legally insufficient to satisfy the good cause requirement. Eat'N Park, 970 A.2d at 494. However, in the present case as discussed above, Attorney New explained that he called the Referee's office three days before the hearing and provided a new contact number for the hearing. If true, Claimant's nonappearance was not the result of his own negligence but, rather, attributable to a breakdown in the administrative process.
The Board begins with a false premise, i.e., that Claimant was required to present "more reliable" evidence than his own testimony to explain why he did not answer the Referee's call. There is no rule that written documents are preferable to oral testimony to prove a fact in dispute. Nelson v. State Board of Veterinary Medicine, 938 A.2d 1163, 1171 (Pa. Cmwlth. 2007). Claimant's testimony was sufficient, in itself, to prove that he was at Attorney New's office when the Referee called. It cannot be rejected for the reason stated by the Board, i.e., that a phone record would be "better" evidence.
The Board disregarded Attorney New's letter and found no record of the call by Attorney New on June 15, 2012, in Bureau records. Accordingly, the Board held that it "discredits the claimant's bare assertion that his former counsel provided an updated phone number to the referee's office." Board Decision and Order, June 4, 2013, at 2. However, the absence of a record at the Bureau of Attorney New's call does not prove that the call did not occur. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 512 (1984) (stating that discredited testimony is not a sufficient basis for reaching a contrary conclusion). There are numerous explanations for the absence of a record of Attorney New's call on June 15, 2012, such as a filing mistake. Even though the Board may reject even uncontradicted testimony, in the present case there was no evidence to support the Board's finding that Attorney New did not update Claimant's contact information by making a telephone call to the Bureau. The Board capriciously disregarded Attorney New's letter.
The Board argues that its activities are presumed to be regular absent a showing of fraud. We note that this presumption concerns matters within the scope of the agency's powers and assumes that an agency will perform its activities in accordance with the law. Beacom v. Robison, 43 A.2d 640, 643 (Pa. Super. 1945). The case cited by the Board, Ferraro v. Unemployment Compensation Board of Review, 464 A.2d 697 (Pa. Cmwlth. 1983), is distinguishable. In Ferraro, this Court employed the presumption to establish that the claimant received a notice of denial of benefits because the Board complied with its statutory obligations by properly mailing the notice to the claimant's last known address and the notice was not returned as undeliverable. Consequently, we held that a claimant must establish fraud to justify untimely appeals. In the present case, it cannot be argued that properly handling phone calls is a duty the Board must perform in accordance with the law.
In addition, Claimant's testimony corroborated Attorney New's statement of events and was based on Claimant's actual knowledge. A claimant's testimony to facts within his actual knowledge qualifies as competent evidence. Unemployment Compensation Board of Review v. Cooper, 360 A.2d 293, 295 (Pa. Cmwlth. 1976). Additionally, "[h]earsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding of the Board, [i]f it is corroborated by any competent evidence in the record . . . ." Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). Though Attorney New's letter constitutes hearsay, it was admitted at the remand hearing without objection. Attorney New's hearsay letter combined with Claimant's corroborative testimony constitutes substantial evidence that Claimant appeared for the hearing at the time and place, i.e., at Attorney New's office, as he had been directed. In short, Claimant had good cause for his nonappearance at the June 18, 2012, hearing.
Because Claimant had good cause for his nonappearance at the June 18, 2012, hearing and the Board refused to consider the evidence presented by Claimant at the remand hearing, we vacate the Board's June 4, 2013, Decision and Order and remand for further proceedings consistent with this opinion.
Because we agree with Claimant that the Board erred in finding that Claimant lacked good cause, we do not address Claimant's alternate argument that the notice of hearing was deficient or the Board's argument that Claimant violated a known industry standard. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of June, 2014, the order of the Unemployment Compensation Board of Review, dated June 4, 2013, in the above-captioned matter is hereby VACATED and the case is REMANDED for further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.
/s/_________
MARY HANNAH LEAVITT, Judge