McNeill v. Commonwealth, Unemployment Compensation Board of Review

HUTCHINSON, Justice,

dissenting.

I dissent.

Although Commonwealth Court impermissibly engaged in fact finding1 in order to reach its conclusion that the Board’s remand to the Referee to take additional evidence was correct, I am convinced that its mandate affirming the Board on this point is correct on other grounds. For the reasons which follow, I would affirm on that other ground.

The majority opinion clearly sets forth the relevant facts. On September 13, 1983, the employer wrote the following letter to the Board:

To whom it may concern,
We do not agree with the decision rendered by the referee on appeal # 83-1-D-647. The claimant Patrisha McNeill, ... should not be eligible for unemployment. The claimant was terminated for willful misconduct and the statement in fact-finding # 3 was totally false. We wish to appeal and have a further hearing. Please notify [our representative] ... when further appeal will be heard.

Original Record at Item No. 9.

To my mind, the salient portion of that letter is the statement that the employer wishes to appeal and requests *581notification of when such further appeal will be heard. My brethren have been misled, by the court below, into mischaracterizing this as a request to reopen a hearing. Were it so, the provisions of 34 Pa. Code § 101.242 would control.

I would hold, to the contrary, that the Board properly treated the employer’s letter as an appeal and request for a remand hearing.3 The Board then acted pursuant to Section 504 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 824 (Supp.1985), and 34 Pa.Code §§ 101.101 and 101.104. Section 504 provides in pertinent part that, “The board ... in cases where a further appeal is allowed by the board from the decision of a referee, may affirm, modify or reverse the determination ... on the basis of the evidence previously submitted in the case, or direct the taking of additional evidence.” 43 P.S. § 824 (Supp. *5821985) (emphasis added). Likewise, 34 Pa. Code § 101.104(c), provides, inter alia:

The Board will review the previously established record and determine whether there is any need for an additional hearing----[T]he Board, in its discretion, may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision.

In the present case, the Board exercised its discretion by ordering a remand hearing. In light of the employer’s allegation that the referee’s third finding of fact was false, I would hold that the Board did not abuse its discretion when it chose to permit the employer to introduce its evidence, even though the employer did not explain its absence from the original hearing before the referee.

I completely agree with the salutary purposes which the majority ascribes to the creation of the unemployment compensation fund. I cannot condone the employer’s unexplained failure to attend the original hearing before the referee. Nonetheless, the Board has been granted discretion to determine whether it needs additional information in order to fulfill its responsibility of seeing that the facts are correctly determined. When the employer alleges that a claimant has obtained compensation by means of false testimony, I believe the Board has the power under Section 504 of the-Law to investigate the allegation and remand for the additional evidence needed to determine the credibility of that allegation.

The central issue in the present case was whether appellant properly notified her employer regarding her absence from work on June 6-8, 1983. There is substantial evidence on the record, as developed after the remand, to support the Board’s finding that she did not do so and that she was, therefore, discharged for willful misconduct pursuant to Section 402(e) of the Law, 43 P.S. § 802(e), and should be denied benefits. Negron v. Unemployment Compensation *583Board of Review, 85 Pa. Commonwealth Ct. 137, 481 A.2d 699 (1984).

. Commonwealth Court stated:

Our review of the record reveals that the Office of Employment Security mailed its Notice of Hearing to the employer at the incorrect address. As a result, the employer failed to attend the initial hearing. At that time, the referee did not have sufficient evidence before him to evaluate the employer’s position. The employer’s not receiving the Notice of Hearing constitutes proper cause for the Board's grant of a further hearing. See 34 Pa. Code § 101.24(a) and Effort Foundry, Inc. v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 356, 415 A.2d 1263 (1980).

Commonwealth Court slip op. at 2 n. 2 (No. 3664 C.D. 1983, filed January 24, 1985). The conclusion that the employer failed to attend the original hearing before the referee because it did not receive notice, is not supported by the record.

. This regulation, found in the subchapter entitled "Provisions Governing Hearings Before the Department or Referee,” details the requirements which must be met by a party who wishes to reopen a hearing.

. The record contains the following order by the Board, dated October 18, 1983:

Whereas, in connection with the above captioned claim(s) an application for further appeal has been filed from the above indicated Referee’s decision; and
Whereas, a review of the record discloses that a hearing is deemed proper, the case is remanded, for the following reasons and purposes, to the Referee, who will serve as the Board’s Hearing Officer:
To schedule a hearing for the purpose of establishing additional testimony regarding the merits of the case so that the Board, having allowed the further appeal, will have for its consideration complete information regarding all matters at issue.

Original record at Item No. 11.

The referee clearly understood the purpose of the remand hearing, as evidenced by his statement to the parties:

I, as Referee in this hearing shall take no part in any Decision which is to be made but will merely act as a Hearing Officer for the Board of Review, who will make the further Determination in the matter. The purpose of this hearing is to establish additional testimony regarding the merits of the case so that the Board having allowed the further appeal will have for its consideration complete information regarding all matters at issue.

N.T. November 1, 1983, at 2 (Original Record at Item No. 13).