Ellis v. Commonwealth
Ellis v. Commonwealth
Opinion of the Court
Opinion by
This is the appeal of an unemployment compensation claimant from an order of the Unemployment Compensation Board of Review reversing a referee’s decision granting her benefits. The board reversed the referee and denied benefits on the basis that the claimant’s discharge was the result of her own willful misconduct.
The claimant was formerly employed as a waitress for Once Upon A Porch, a restaurant in Philadelphia, Pennsylvania, where she worked for eighteen months at an hourly rate of $2.01 plus tips. The events which resulted in her discharge are in dispute.
The employer testified that on her last day of work, August 7, 1982, the claimant “stomped through the restaurant yelling and swearing” and that this incident “had to do with a recipe for lemonade, I believe.” He further testified that this conduct “was interfering with the staff and . . . with the customers, the clientele,” and that he did not reprimand her, or even speak to her, at the .time the incident occurred.
The claimant denied that this event described by her employer took place. She testified at the hearing that “this is the first I’ve heard about any incident. No incident .ever occurred ... ”; .also .that the employer did not mention the incident as a reason for her ter
The referee found as fact that the claimant was discharged for what the supervisor felt was disruptive behavior. She observed in discussion that there was no evidence of willful misconduct and granted benefits. On appeal the Unemployment Compensation Board of Review made factual findings of its own including -that the claimant behaved as the employer described. The board concluded that this conduct constituted willful misconduct. The employer’s testimony was of course sufficient support for the board’s finding.
The appellant alleges error in the board’s failure explicitly to state its reasons for issuing new findings and reversing the conclusion of the referee, citing Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982) and Wilson v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 504, 457 A.2d 164 (1983), as support of this contention. These cases hold that -the board “may not . . . simply disregard findings made by the referee which are based upon consistent and uncontradicted testimony without stating its reasons for doing so.” Treon, 499 Pa. at 461, 453 A.2d at 962. These authorities have no application here because the referee made no finding with regard .to the crucial issue in the case: -that of whether or not the incident described by the employer and denied by the claimant in fact occurred. As noted, the referee found only that the claimant’s supervisor felt that she behaved in a disruptive manner. The referee did not find whether the claimant did or did not walk through the restaurant yelling and swearing. The board found that “the
No effective argument could be made that if the claimant’s conduct was as her employer described, it would not constitute willful misconduct.
The claimant also ineffectively contends that the referee failed properly to assist her at the hearing. The referee presided over a hearing where neither of the parties had legal counsel. The record, in our view, shows that she properly fulfilled her function to advise the parties of their rights and assist them throughout the course of the proceedings.
The claimant however maintains that the referee failed in the duties required of referees by regulation at 34 Pa. Code §101.21 (a) by (1) not helping her cross-examine the employer and (2) by insufficiently 'explaining her right to subpoena her co-workers.
After the employer described the claimant’s conduct in the terms we have earlier mentioned, the referee asked the claimant if she wished to ask questions. The claimant said she had no questions and the referee passed to the claimant’s case. The claimant maintains that the referee should have suggested to the claimant questions to be put to the employer as cross-examination so that he would be compelled to elaborate on his meager description of the claimant’s behavior. This argument assumes that a more detailed description of the event would have been helpful to the claimant, whereas probing could have been harmful; it could well have given content to the claimant’s language.
As to the matter of subpoena, the claimant had in her possession at the hearing letters from other em
Finally, the claimant says that the board should not have considered the employer’s appeal, in the form of a letter, from .the referee’s decision. The claimant characterizes the letter as a post hearing statement which directly contradicted the employer’s testimony at the hearing. In our view, the letter was not a post hearing statement; it was a notice; of appeal. It quite
For these reasons, the order of the board is affirmed.
Order
And Now, this 17th day of February, 19.84, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.
Dissenting Opinion
Dissenting Opinion by
I dissent. In this case, as the majority opinion points out, “the Unemployment Compensation Board of Review [Board] made factual findings of its own including that the claimant behaved as the employer described.” The referee had made no such finding concerning whether the claimant was, indeed, guilty of disruptive conduct. The Court then concludes “[t]he employer’s testimony was of course sufficient support for .the board’s finding.” I believe that the conclusion .of the majority is in error. It is true that our cases do say
the unemployment compensation referee acts merely as an agent for the Board and that the Board is the ultimate fact finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to he accorded the evidence.
Unemployment Compensation Board of Review v. Wright, 21 Pa. Commonwealth Ct. 637, 639, 347 A.2d 328, 329 (1975) (emphasis added). This principle set forth in the opinion of Judge Blatt in Wright has been reiterated by her in Clowney v. Unemployment
I do not perceive that the case of Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982), cited by the majority, changes the rule enunciated in these cases. The Board may not be bound by the referee’s findings to the same extent that a court, under the classic case of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), is bound to submit uncontradicted and perhaps in
Section 504 of the Unemployment Compensation Law (Act), Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §824 has been cited in some of the cases for the proposition that the Board is the ultimate fact finder. The statute in question provides as follows:
The board shall have power, on its own motion, or on appeal, to remove, transfer, or review any claim pending before, or decided by, a referee, and in any such case and in cases where a further appeal is allowed by the board from the ’ decision of a referee, may affirm, modify, or reverse the determination or revised determination, as the case may be, of the department or referee on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence. When any claim pending before a referee is removed or transferred to the board, the board shall afford the parties and the department reasonable opportunity for a fair hearing.
43 P.S. §824.
This 'Section of the Act, in my judgment, cannot be construed to give the Board the authority to assess credibility in .situations when it did not see the witnesses, hear them, or observe their demeanor.
In the present case, therefore, I find it impossible to justify the proposition that the Board, not hearing
I would, therefore, remand for additional factual findings.
The Supreme Court in Treon states: “If particular findings are inconsistent, incredible or unsupported by the evidence, then the Board must so indicate.” 499 Pa. at 461, 453 A.2d at 962.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.