Summary
In Fernandes v. Unemployment Compensation Board of Review, 53 Pa. Commw. 79, 416 A.2d 644 (1980), we held that a referee erred in refusing the claimant's request to subpoena two co-workers to testify on whether the claimant was unjustifiably reprimanded, thereby providing necessitous and compelling cause for his quit.
Summary of this case from Miller v. CommonwealthOpinion
Argued June 6, 1980
July 16, 1980.
Unemployment compensation — Voluntary termination — Cause of a necessitous and compelling nature — Burden of Proof — Unemployment Compensation Law, Act 1936, December 5, P.L.(1937) 2897 — Request for issuance of subpoena — Reprimand.
1. An employe voluntarily terminating employment is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L.(1937) 2897, unless he proves that such termination was for a cause of a necessitous and compelling nature. [81]
2. A reprimand given an employe can constitute a necessitous and compelling cause justifying a voluntary termination and permitting such employee to recover unemployment compensation benefits only if such reprimand was unreasonable and unjustified, and it is improper for a referee to refuse a request of an employe for the issuance of subpoenas for two co-workers whose testimony is needed to establish that the reprimand was unreasonable and unjustified. [82]
Argued June 6, 1980, before Judges MENCER, ROGERS, and CRAIG, sitting as a panel of three.
Appeal, No. 636 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald Fernandes, No. B-169093.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated. Case remanded.
Donald Fernandes, petitioner, for himself.
Elsa D. Newman-Silverstine, with her Gary Marini, Assistant Attorney General, Richard Wagner, Chief Counsel and Edward G. Biester, Jr., Attorney General, for respondent.
Claimant Donald Fernandes appeals from a decision of the Unemployment Compensation Board of Review, which held that claimant was ineligible for benefits under Section 402(b)(1), 43 P. S. § 802(b)(1) of the Unemployment Compensation Law, because he voluntarily terminated his employment with the Philadelphia Rivet Company (employer) without necessitous and compelling cause.
Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1).
On September 29, 1978, after observing the claimant engaging in horseplay during working hours, the claimant's supervisor sent the claimant home early. The supervisor accompanied his disciplinary action with a warning to claimant that if he persisted in such conduct he could look for another job. Claimant did not report to work after September 29, but he came to pick up his pay check on October 4, 1978 and at that time was informed that he could still return to his job. However, the claimant never returned to work.
The claimant has the burden of proving that he terminated his employment due to necessitous and compelling cause. Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366 (1976).
To meet his burden, claimant timely requested in writing the issuance of subpoenas to produce documents and witnesses at the referee's hearing. Section 506 of the Unemployment Compensation Law, 43 P. S. § 826, provides:
The department and the board shall have power to issue summons or subpoenas to compel the attendance of witnesses and the production of . . . papers . . . and other records deemed necessary as evidence in connection with a disputed claim. . . .
Because the Office of Employment Security failed to provide claimant's request to the referee before the hearing, the referee considered the request in the course of the hearing; he refused to issue any subpoenas.
This court may reverse a decision of a referee when we find that he has abused his discretion or committed an error of law, Flanagan v. Unemployment Compensation Board of Review, 47 Pa. Commw. 120, 407 A.2d 471 (1979).
Claimant entered a clear objection to the referee's refusal and preserved the question here. Hence, the issue is whether the referee erred by denying claimant's request that certain witnesses be subpoenaed.
As the Commonwealth here recognizes, claimant's burden related to the principle that a reprimand constitutes necessitous and compelling cause only if it is unreasonable and not justified. Rooney v. Unemployment Compensation Board of Review, 33 Pa. Commw. 76, 380 A.2d 957 (1977).
With respect to the attempt to subpoena co-workers Charles Garner and Evan Sanders, claimant's request, on its face, indicates that their testimony was sought to determine whether the reprimand was justified.
The request stated in part:
I, Donald F. Fernandes, do hereby demand that all SUBPOENAS be issued forthwith, concerning the following documents and all related informations pertinent to my rights being fully protected, as an unemployment benefit/s claimant, in dispute. . . .
. . . .
SUBPOENA #3 — The person of one Charles Garner, night shift tool room machinist, employed at Philadelphia Rivet Company, Doylestown, Pa. This witness can supply firsthand knowledge as to 'GOING ON'S' at work, and even to the part that he may have become involved involuntarily to workers 'pranks'.
SUBPOENA #4 — The person of one Evan Sanders, Phila., Rivet Co., Employee. This witness can supply first hand, UNBIASED knowledge, as to who or what did most of the 'FOOLING AROUND' on the night shift.
Although we certainly decline to encourage unnecessary or irrelevant subpoenas, we must conclude that the referee erred in refusing subpoenas for the two witnesses named.
However, the referee's approach and procedure in this case was sensible and commendable. In most situations it may be wise, as occurred in this case, to conduct a hearing before subpoena issuance because the hearing may demonstrate a subpoena to be unnecessary. However, if a subpoena then appears to be necessary, it can be issued to produce the requested evidence at a continued hearing.
Accordingly, we remand this case for rehearing, with claimant to be afforded the assistance of the subpoenas requested as to the two witnesses, Charles Garner and Evan Sanders.
ORDER
AND NOW, this 16th day of July, 1980, the order of the Unemployment Compensation Board of Review is vacated and the record remanded for further hearing solely for the purpose of adducing the testimony of Charles Garner and Evan Sanders and any rebuttal thereof offered by the employer.