IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philisa A. Goldsmith, : Petitioner : : v. : No C.D : Unemployment Compensation : Submitted: January 16, 2009 Board of Review, : Respondent : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 9, 2009 Philisa A. Goldsmith (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee). In that decision, the Referee found that Claimant was ineligible for unemployment compensation benefits because she had committed willful misconduct under Section 402(e) of the Unemployment Compensation Law (Law), 1 by violating both the harassment and Internet use policies of her employer, the County of Delaware (Employer). Claimant 802(e). 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

2 argues that the Board erred in concluding that she had committed willful misconduct. Claimant also petitions for review of the Board s denial of her reconsideration request, which was based on a settlement agreement between Claimant and Employer. The procedural history of this case is somewhat convoluted, but its exposition is necessary and helpful in addressing the issues before the Court. Claimant applied for unemployment benefits in January On January 25, 2008, the Unemployment Compensation Service Center (Service Center) denied Claimant s application, concluding that she had committed willful misconduct by violating Employer s known and reasonable policies. (Notice of Determination, January 25, 2008.) Claimant appealed. On February 21, 2008, a Referee conducted a hearing on the appeal. At the hearing, Employer presented testimony and evidence in support of the denial of benefits. On that same date, the Referee issued a decision affirming the Service Center s decision. On February 26, 2008, Claimant, through her attorney, filed an appeal with the Board. Before the Board issued its decision, on April 16, 2008, Claimant s attorney sent a letter to the Board indicating that Claimant had reached an agreement with Employer in a suit that she filed with the State Civil Service Commission. This agreement, in part, apparently called for Employer to withdraw its opposition to the unemployment compensation claim. (Letter from Ronald H. Beifeld, counsel for Claimant, to the Board (April 16, 2008).) Attached to the letter was a copy of a document titled Stipulation. The Stipulation contained the caption Commonwealth of Pennsylvania Unemployment Compensation Board of 2

3 Review and contained the appeal number for Claimant s unemployment compensation case. (Stipulation.) The Stipulation was signed by Claimant, her attorney, and an attorney for Employer. The Stipulation provided, in relevant part, that: 1. [Claimant and Employer] agree that this Appeal presently before the Unemployment Compensation Board of Review shall be withdrawn by the Claimant/Appellant, and remanded to the Springfield Referee Office for re-hearing in accordance with the parties mutual understanding. 2. On or before the scheduled re-hearing before the Referee, the Employer, County of Delaware, shall withdraw its opposition to the [Claimant] s claim for unemployment compensation benefits, retroactive to January 12, Concurrently with the above provisions, the [Claimant] shall withdraw her claim before the State Civil Service Commission.... (Stipulation.) The Board did not respond to the letter sent by Claimant s attorney. On June 24, 2008, the Board issued a decision and order, which affirmed the Referee. The Board made the following findings of fact, which, although phrased in a slightly different manner, were identical in substance to the Referee s findings: 1. The claimant was last employed as a Case Worker II by the Delaware County Office of Mental Retardation from February 7, 2005 until January 10, The employer s policy on internet access says, in part, that the Delaware County Internet System is provided for work related purposes only. The system is not to be used for an employee s private business. In addition, employees are not permitted to send unwanted or harassing messages to other individuals via the employer s internet system. 3

4 3. The employer considers a part of its internet system. 4. The employer s policy also states that employees shall not be subject to harassment. Harassment will result in disciplinary action up to and including termination. 5. The claimant knew or should have known about the employer s policies. 6. On or about November 30, 2007, three of the claimant s coworkers accused her of having an affair with her unit supervisor. 7. As a result of the accusation, the claimant was transferred to a new supervisor. While the transfer required the claimant to move her desk and change her telephone number, the claimant s job and pay rate remained the same. 8. The claimant requested that the employer investigate the accusations. 9. The claimant alleged that she was being harassed by her coworkers. She informed the employer that the coworkers allegedly made jokes and comments about the situation. They also made the claimant uncomfortable when she was with the supervisor in question. 10. On January 7, 2008, the claimant sent an to the three coworkers who accused her of the affair. 11. The claimant s contained profanity and inappropriate statements about her coworkers lives. 12. On January 10, 2008, the claimant received notification that she was being suspended without pay as a direct result of her inappropriate use of the internet system and for harassing other County employees. 13. On January 29, 2008, the claimant was discharged for the above violations. 4

5 (Board Decision (Merits Determination), Findings of Fact (FOF) 1-13.) In its discussion, the Board stated that Employer credibly met its burden of establishing a policy that prevents employees from using its internet system for personal use and that also prevented them from using internet access to send unwanted or harassing s to another party. (Merits Determination at 3.) The Board concluded that the Claimant sent, that contained profanity and derogatory comments about [the] personal lives of her three coworkers, violated this policy. (Merits Determination at 3.) The Board explained that, because Employer met its burden, the burden shifted to Claimant and she needed to establish that she had good cause for her conduct. The Board concluded that Claimant did not meet this burden. The Board explained that, the fact that claimant was allegedly being harassed does not justify her violation of the employer s policy. Other outlets were available to the claimant, such as filing a complaint with her union. (Merits Determination at 3.) Accordingly, the Board concluded that Claimant s willful misconduct made her ineligible for unemployment compensation benefits pursuant to Section 402(e) of the Law and issued an order to that effect. (Merits Determination at 3.) The Merits Determination did not reference or discuss the Stipulation. On June 30, 2008, Claimant s attorney sent the Board a letter requesting that it reconsider its decision [s]ince the Board has neither acknowledged nor referred to this settlement agreement between the parties. (Letter from Beifeld to the Board (June 30, 2008) at 1.) In the letter, Claimant also reserve[d] the right to challenge the merits of the [Board s] decision, should an Appeal to the Commonwealth Court be necessary. (Letter from Beifeld to the Board (June 30, 5

6 2008) at 2.) In response, the Board sent Claimant s Attorney a letter on July 1, 2008, acknowledging receipt of his communication to the Board and informing him that his request for reconsideration is currently before the Board. (Letter from Edward P. Rawlings, UC Appeals System Administrator, to Beifeld (July 1, 2008).) On July 22, 2008, the Board issued an order denying [t]he request for reconsideration. (Board Order (Reconsideration Determination), July 22, 2008.) On July 25, 2008, Claimant filed a Petition for Review (First Petition) with this Court, which sought review of the Merits Determination by the Board. 2 Shortly thereafter, this Court issued an order finding the First Petition to be deficient for failing to meet the requirements of Pennsylvania Rule of Appellate Procedure 1513(d). 3 Goldsmith v. Unemployment Compensation Board of Review 2 The substance of the First Petition, in its entirety, follows: The Petitioner, Philisa A. Goldsmith, Claimant before the Respondent Unemployment Compensation Board of Review, hereby petitions this Court for review of the decision of the Respondent dated June 24, 2008, denying unemployment compensation benefits to the Petitioner, and a copy of which decision is attached hereto, made a part hereof, and marked Exhibit A. (First Petition.) As indicated, a copy of the Merits Determination was attached. 3 This rule provides, in relevant part: (d) Content of appellate jurisdiction petition for review. An appellate jurisdiction petition for review shall contain: (1) a statement of the basis for the jurisdiction of the court; (2) the name of the party or person seeking review; (3) the name of the government unit that made the order or other determination sought to be reviewed; (4) reference to the order or other determination sought to be reviewed, including the date the order or other determination was entered; (5) a general statement of the objections to the order or other determination; and (6) a short statement of the relief sought. A copy of the order or other determination to be reviewed shall be attached to the petition for review as an exhibit. The statement of objections will be deemed to include every subsidiary question fairly comprised therein. (Continued ) 6

7 (No C.D. 2008, filed July 31, 2008). Although this Court did not specifically identify the deficiencies in the First Petition, the deficiencies were clear on the face of the document. For instance, the First Petition contains no statement describing Claimant s objections to the Merits Determination. Consequently, this Court directed Claimant to file and serve a complete appellate jurisdiction petition for review within 30 days of entry of this order... or the appeal will be dismissed as of course. Goldsmith v. Unemployment Compensation Board of Review (No C.D. 2008, filed July 31, 2008). In response to this Court s order, Claimant filed a revised Petition for Review (Second Petition) within the given timeframe. Like the First Petition, the Second Petition sought to challenge the Merits Determination. The Second Petition did not specifically identify any deficiencies in the Merits Determination but, instead, sought to incorporate, by reference, the objections Claimant had raised in her letter of appeal from the Referee s decision to the Board (Appeal Letter). 4 However, the Appeal Letter was not attached to the Second Petition and the original record, which contained this letter, was not yet filed with this Court. In Pa. R.A.P. 1513(d). 4 The Claimant s attorney explained the argument as to the Merits Determination in this manner: [t]he Petitioner s objection to the original Decision of June 24, 2008, is contained in the original Letter of Appeal from the determination of the Referee whose decision the Unemployment Compensation Board of Review merely restated without addressing the issues raised by the Petitioner in her Appeal. (Second Petition 5(a).) 7

8 addition, the Second Petition sought to challenge the Board s denial of a reconsideration request made by Claimant. 5 The Board filed with this Court a Motion to Grant Summary Relief and Dismiss Petitioner s Appeal (Motion to Dismiss). In the Motion to Dismiss, the Board argued that: (1) Claimant errs by appealing from two orders in a single Petition for Review; (2) Claimant has waived any arguments as to the Merits Determination because the Second Petition identifies none, and the document referenced in the Second Petition is not available for this Court to determine what issues Claimant is challenging (Motion to Dismiss 13); and (3) per Sill-Hopkins v. Unemployment Compensation Board of Review, 563 A.2d 1288, 1289 (Pa. Cmwlth. 1989), an employer and employee may not determine eligibility for unemployment compensation benefits by agreement when the law provides that the claimant is not eligible for benefits. The Board asked this Court to allow it to delay certifying the record in the case until 30 days after the Court decided the Motion to Dismiss. This Court, by order dated September 11, 2008, did not grant the Motion to Dismiss but, instead, directed the parties to address the issues raised in the Motion to Dismiss in their briefs in support of Claimant s Second Petition. The Court gave the Board 30 days to certify the record to this Court, which the Board did in a timely manner. The parties filed briefs with this Court on the merits 5 The Claimant s attorney explained the argument as to the Reconsideration Determination in this manner: [t]he objection to the Board s refusal to Reconsider is based upon the failure of the Respondent to recognize that an agreement had been reached between the litigating parties and its refusal to acknowledge the Agreement and remand the matter back to the Referee for Reconsideration. (Second Petition 5(b).) 8

9 of the Second Petition and on the issues raised by the Board in its Motion to Dismiss. Under Pennsylvania Rule of Appellate Procedure 512, taking a single appeal from multiple orders is highly discouraged. 6 Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544, 548 (Pa. Cmwlth. 1994). We have held that, under this rule, a court will quash an appeal where review will not provide a meaningful remedy. Mikkilineni v. Amwest Surety Insurance Co., 919 A.2d 306, 311 (Pa. Cmwlth. 2007). Thus, the fact that Claimant filed an appeal from the Merits Determination and the Reconsideration Determination in a single document, itself, provides a sufficient basis to quash the appeal. However, we also note that we may refrain from quashing an appeal in the interests of judicial economy. Id. In this case, in the interests of judicial economy, we will not quash the appeal from either of these orders. 6 This rule, and the accompanying note, follow: Parties interested jointly, severally or otherwise in any order in the same matter or in joint matters or in matters consolidated for the purposes of trial or argument, may join as appellants or be joined as appellees in a single appeal where the grounds for appeal are similar, or any one or more of them may appeal separately or any two or more may join in an appeal. Note: Substantially the same as former Supreme Court Rule 20 (prior to its omission by the revision and renumbering order of April 27, 1972), former Superior Court Rule 9A, and former Commonwealth Court Rule 26. The rule continues the policy that taking one appeal from several judgments is not acceptable practice and is discouraged. General Electric Credit Corp. v. Aetna Casualty and Surety Co., 437 Pa. 463, 469, 263 A.2d 448, 452 (1970). Pa. R.A.P

10 However, there are other procedural deficiencies significant enough to merit dismissal of the appeal. We first note that the Board correctly indicates in its Motion to Dismiss that the Second Petition is not in conformance with Pennsylvania Rule of Appellate Procedure 1513(d) and, accordingly, we conclude that this Second Petition is not a complete appellate jurisdiction petition as this Court directed Claimant to file in the Court s order of July 31, As noted by the Board in its Motion to Dismiss, the Second Petition did not identify, on its face, what Claimant was challenging as to the Merits Determination but, instead, sought to incorporate by reference the Appeal Letter for its arguments. While Rule 1513(d) requires only a general statement of the objections, such a general statement must include more than just a reference to another document, particularly when that document is not even attached to the petition. A general statement must contain some statement that fairly embrace[s] the legal issue therein. Patla v. Unemployment Compensation Board of Review, 962 A.2d 724, 727 (Pa. Cmwlth. 2008) (finding as insufficient averments of error that the Board was guilty of an error of law in deciding to reverse the decision of the Referee and that [t]here is a lack of substantial evidence to support the decision of the Board). In this case, Claimant s statement of the issue, on its face, as to the Merits Determination is no more detailed than the statements we rejected in Patla. We must similarly find in this case that Claimant has not preserved any issue as to the Merits Determination. Accordingly, we must dismiss the First Petition. 7 7 We note that, even if we reached Claimant s arguments as to the Merits Determination, we would still find against Claimant. First, Claimant argues that the Referee failed to address the fact that the was an isolated incident and, thus, could not qualify as harassment, which requires repeat or persistent conduct. Second, Claimant argues that the in question was clearly work related, and instigated because of the Employer s failure to handle an internal dispute between its employees in a competent manner. (Appeal Letter at 2.) (Continued ) 10

11 This Court s review is limited to determining whether Claimant s constitutional rights were violated, whether an error of law was committed, or whether the necessary factual findings are supported by competent evidence. Patla, 962 A.2d at 726 n.2. Under Section 402(e) of the Unemployment Compensation Law, a claimant is ineligible for unemployment compensation when her unemployment is due to [her] discharge or temporary suspension from work for willful misconduct connected with [her] work. 43 P.S. 802(e). To prove willful misconduct through the violation of a rule, an employer bears the initial burden of establishing the existence of a policy, that the policy is reasonable, and that the employee was aware of the policy at the time the employee engaged in the conduct that is alleged to be a violation of that policy. Williams v. Unemployment Compensation Board of Review, 926 A.2d 568, 571 (Pa. Cmwlth. 2007). If the employer meets this burden, then the burden shifts to the claimant to establish that she had good cause for her actions. Id. The evidence in this case establishes that Employer had a written policy that indicated that its Internet System is provided for work related purposes only. Under no circumstances shall it be used for an employee s private use. (Employer s Internet Access Policy at 1.) Additionally, this policy provided that Employer s Internet Access System will not be used to... send unwanted or harassing to any party. (Employer s Internet Access Policy at 1.) The record also contains documents, signed by Claimant, indicating that she had received Employer s harassment policies and had attended harassment awareness training. (Acknowledgement, March 23, 2006; Notification Agreement, February 7, 2005.) While portions of the s Claimant sent may arguably have been related to work, and not of a harassing nature, the lion s share of these s depart from any work-relatedness and are unquestionably phrased to upset and offend the recipients. Additionally, the s drifted far-afield enough from any work-related basis to take on a personal nature. Sending a private e- mail over Employer s Internet connection also violated Employer s Internet Access Policy. Each of the different violations, alone, and together, provide sufficient basis for the Board s determinations. We also find no legal error in the Board s determination that Claimant did not meet her burden of establishing a reasonable basis for her conduct. As correctly noted by the Board, Claimant had other means of seeking redress for the averred misconduct of her coworkers. Claimant, in her brief, argues that isolated use of vulgar language in response to provocation is de minimis per Kowal v. Unemployment Compensation Board of Review, 512 A.2d 812 (Pa. Cmwlth. 1986); and that mere communication to a co-worker to be perceived as threatening or a form of harassment is not conclusive if in fact it is non-violent.... Phoenixville [Area] School District v. Unemployment Compensation Board of Review [596 A.2d 889 (Pa. Cmwlth. 1991).] (Claimant s Br. at 7.) Claimant, thus, avers that she had a reasonable basis for her conduct. We find this precedent factually distinguishable from the present case. In the current case, unlike in Kowal, Claimant s conduct did not arise in the heat of the moment and was not of quick duration. Rather, some time after Claimant had been moved to her (Continued ) 11

12 From the face of Claimant s Second Petition, we are able to discern her argument as to the Reconsideration Determination. Claimant argues that the Board should have remanded the case pursuant to the Stipulation and that the Board acted arbitrarily and capriciously in failing to address the Stipulation in any manner. However, Claimant concedes that the Board has within its power the discretion to refuse... reconsideration. (Claimant s Br. at 8.) The Board argues that its failure to address the Stipulation was harmless error. While it would have been helpful for the Board to address the Stipulation, since it was submitted to the Board nearly two months before the Board issued its Merits Determination, we agree with the Board that any failure to address the Stipulation was a harmless error. In the context of unemployment compensation benefits, [a]n employer and employee... cannot determine the employee s entitlement to benefits by subsequent agreement after a finding that Claimant, under the facts of the case, is not legally entitled to benefits. Sill-Hopkins, 563 A.2d at This principle is well-established in Pennsylvania law. See Cozzone v. Unemployment Compensation Board of Review, 103 A.2d 284, 285 (Pa. Super. 1954) (affirming the Board s affirmance of the referee s denial of unemployment compensation benefits to a claimant based on new desk, away from the coworkers, Claimant prepared two long s from her desk at work. She did not send them in response to a particular flashpoint event. The more deliberative aspect of this case is also shown by the fact that, the day after sending the first , Claimant followed it up with a second . For these reasons, we find Kowal distinguishable from the facts of this case. We also find Phoenixville distinguishable. The comments in this case are qualitatively different and exceed a mere conversation about the events in which the communicants were involved, as in Phoenixville. Rather, the communications here went far beyond the events at work. The communications were meant to harass, not to persuade; the s were intended to be offensive and to demean the recipients. 12

13 willful misconduct, even though the employer withdrew its objections to the claimant receiving unemployment compensation benefits after the referee s decision, but before the Board s decision). Applying this principle, this Court has noted that a referee did not err by failing to admit into evidence a letter that had been submitted by an employer to the referee prior to the hearing, in which the employer withdrew its objections to the claimant receiving unemployment compensation benefits, because: The employer s letter in this instance does nothing to alter the merits of the case as established by [claimant s] testimony. For this reason, the failure to submit the letter into evidence is of no import, and a remand would serve no purpose. It is for the referee and the Board to determine a claimant s eligibility for benefits in unemployment compensation cases by determining the facts and applying the law. It is not for an employee and employer to determine eligibility for benefits by agreement. Turner v. Unemployment Compensation Board of Review, 381 A.2d 223, 224 (Pa. Cmwlth. 1978). Similarly, we have refused to give determinative weight to an agreement between an employer and a claimant that resolved their dispute that had led to the claimant s discharge, and affirmed the denial of benefits even when, by agreement, employer reinstated claimant in his position. Nesmith v. Unemployment Compensation Board of Review, 402 A.2d 1132, 1133 (Pa. Cmwlth. 1979). A key reason behind this principle is that [t]he Board is charged with the duty of safeguarding the [unemployment compensation] fund. Phillips v. Unemployment Compensation Board of Review, 30 A.2d 718, 723 (Pa. Super. 1943); see also Amspacher v. Unemployment Compensation Board of Review,

14 A.2d 688, 691 (Pa. Cmwlth. 1984) (the Commonwealth has a duty to protect the unemployment compensation fund against dissipation by those not entitled to benefits. ). This safeguarding responsibility requires the referee and Board to examine the facts of each case to determine if the circumstances surrounding a claimant s unemployment qualify that claimant, under the law, for compensation from the fund. See Philadelphia Transportation Company v. Unemployment Compensation Board of Review (In re Gagliardi), 141 A.2d 410, 415 (Pa. Super. 1958) ( It is the duty of the referee, as representative or agent for the board to fairly develop the facts. ) This duty extends beyond merely passively hearing the witnesses who voluntarily appear, and gives the referee or the Board [the responsibility] to call witnesses should additional testimony [be] required to adequately assess the factual circumstances surrounding a claimant s unemployment. Phillips, 30 A.2d at 723. The responsibility is necessary, in part, because an employer s interests may not coincide with the Board s interest of protecting the fund. Given this possible divergence of interests, the Board and referee must necessarily investigate the circumstances, independent of any representations made by the Employer. See generally, DiGiovanni v. Unemployment Compensation Board of Review, 404 A.2d 449, 450 (Pa. Cmwlth. 1979) (noting the responsibility of the Board to protect the unemployment compensation fund, as well as the investigative power of the Board toward that end, and citing to numerous cases of this Court where an employer s nonparticipation had no bearing on the ultimate decision). Our Supreme Court has discussed the structure of our unemployment system and, in doing so, has emphatically noted the manner in which private agreements 14

15 between claimants and employers that rely on the fund threaten the viability of the unemployment compensation system. In Department of Labor and Industry v. Unemployment Compensation Board of Review, 418 Pa. 471, 211 A.2d 463 (1965), the Supreme Court was faced with the terms of a collective bargaining agreement in which more senior bargaining unit members were laid off once they earned a total of $5,000 for a year, so that less senior workers could fill their positions for the remainder of the year. Id. at , 211 A.2d at In that case, senior workers having met the $5,000 threshold applied for unemployment compensation benefits. Id. at 474, 211 A.2d at 465. The Supreme Court affirmed the denial of benefits to the workers that left employment under the collective bargaining agreement, concluding that they were voluntarily unemployed. Id. at 476, 211 A.2d at 465. The Supreme Court vehemently criticized what it deemed to be unemployment devised by the employer and his employee by contract and noted that allowing such contracts to use the unemployment compensation fund to augment their terms could destroy the unemployment compensation system: [T]he foundation of the unemployment compensation system upon which the efficacy and, indeed, the source of life of the program rests, can be found in the principle of the accumulation of financial reserves. The principle of accumulations is based upon the theory that by contributions of employers throughout the state, a reserve fund can be accumulated. From this fund, workers who are unemployed through no fault of their own may receive payments to cushion the hard economic blow which unemployment nearly always inflicts. The life of the system literally depends upon the existence of a fund out of which those payments can be made. Quite obviously, the fund can not remain healthy and viable if sums are removed not only to relieve the economic distress which accompanies unemployment due to natural fluctuations of the economy, but also are removed recurrently, systematically, and by calculated design as an aspect of an employer-employee contract. 15

16 The fund must be used only in accordance with its statutorily stated purpose. It must not be used as an integral part of an employer-employee contract which is deliberately designed to provide the employer with a readily available labor force and to defray the cost of such undertaking by withdrawals from the common trust fund which is contributed to by all covered employers in Pennsylvania for the benefit of involuntarily separated employees. Neither the employer nor the employee -- alone or together -- may remold the unemployment compensation system to serve their private interest in securing payments of benefits from the common fund by agreement.... Id. at , 211 A.2d at (emphasis added)(footnotes omitted). While, in Department of Labor and Industry, the Supreme Court was addressing the terms of a collective bargaining agreement that essentially used the unemployment compensation fund to augment the terms of the agreement, the rationale and concern raised by the Supreme Court in that case applies equally to a case such as the present one. In this case, employer and claimant essentially seek to use the unemployment compensation fund as the source of a settlement of Claimant s separate civil rights claims against the Employer. Such purpose is not congruent with the purposes behind the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S Although Employer may have withdrawn its opposition to Claimant s application for benefits, the Commonwealth is not bound by Employer s actions where, as here, the record supports the Board s finding of willful misconduct. Thus, even if the Board erred in not addressing the Stipulation, such an error would be a harmless one. Accordingly, we affirm the Reconsideration Determination. 16

17 For the above reasons, we find multiple bases in the successive procedural errors to dismiss Claimant s First Petition and to deny her Second Petition. Accordingly, the Board s Reconsideration Determination is affirmed. RENÉE COHN JUBELIRER, Judge 17

18 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philisa A. Goldsmith, : Petitioner : : v. : No C.D : Unemployment Compensation : Board of Review, : Respondent : O R D E R NOW, July 9, 2009, Petitioner s Petition for Review of the Unemployment Compensation Board of Review s June 24, 2008 Order in the above-captioned matter is DISMISSED. IT IS FURTHER ORDERED that the Unemployment Compensation Board of Review s July 22, 2008 Order in the above-captioned matter is hereby AFFIRMED. RENÉE COHN JUBELIRER, Judge

19 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Philisa A. Goldsmith, : Petitioner : : v. : No C.D : Submitted: January 16, 2009 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY JUDGE SMITH-RIBNER FILED: July 9, 2009 I respectfully dissent from the decision of the majority to dismiss the petition for review of the June 24, 2008 order of the Unemployment Compensation Board of Review denying benefits and to affirm the Board's July 22, 2008 order to let stand its denial of benefits and to deny Petitioner's request for reconsideration. Delaware County Office of Mental Retardation (Employer) discharged Petitioner, a Case Worker II, on January 29, 2008 based on an alleged violation of Employer's policy prohibiting employee access for personal use on its internet system to send unwanted or harassing messages to other persons. The Board found that Petitioner sent an to her co-workers on January 7, 2008 through Employer's internet system whereby Petitioner responded to the co-workers' accusations that she was having an affair with her unit supervisor. Petitioner asked "WHY" the co-workers made the accusations, explained some of her personal and health circumstances and

20 then discussed the co-workers' behavior and lifestyles, with a minimal use of profanity. The majority determines that procedural defects in Petitioner's second petition for review require that the appeal be dismissed and that the Board's denial of Petitioner's request for reconsideration be affirmed where the Board's failure to address the parties' stipulation for a remand was harmless error. The majority concludes that the second petition does not comply with the Court's July 31, 2008 order requiring Petitioner to "file and serve a complete appellate jurisdiction petition for review." In response to the order Petitioner filed her second petition for review with a subheading "content of appellate jurisdiction." The Board has not argued that the second petition did not conform; it merely argues that Petitioner did not contest specific findings and that they therefore are binding on the Court. Petitioner's second filing arguably complied with the wording of the Court's order, and as such I disagree that this appeal should be dismissed on procedural grounds. In any event, the majority has decided the merits and concluded that Petitioner violated Employer's policy based on additional factual findings made by the majority, including that the lion's share of Petitioner's s were not work related, that the they were "unquestionably phrased to upset and offend the recipients" and that they were "meant to harass, not to persuade" the co-workers. Slip op. at n7. Nowhere in this proceeding did the Board make these findings. I also note that the Board's findings were limited to one sent on July 7, 2008 rather than the two e- mails upon which the majority makes its factual findings. Nevertheless, despite Petitioner's complaints of harassment by co-workers and her reporting of the same to Employer, the Board determined that Petitioner failed to show good cause for DAS-R - 20

21 violating Employer's policy, and it therefore concluded that by sending the Petitioner had engaged in willful misconduct. I strongly disagree that Petitioner's response to the accusations made against her by co-workers amounted to harassment of those co-workers or otherwise violated Employer's policy. There was minimal profanity, and it was the co-workers' conduct that precipitated the conflict and the chain of events leading to Petitioner's discharge. Based on a totality of the circumstances, the Board erred in deciding that Petitioner was ineligible for benefits due to willful misconduct. Citing Stop-N-Go of Western Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 707 A.2d 560 (Pa. Cmwlth. 1998), among others, Petitioner correctly argues that a critical issue to be considered in this particular willful misconduct case is "who" initiated the conflict. Employer does not deny that the co-workers accused Petitioner of having an affair with her supervisor, and the Board also found that Petitioner requested an investigation into the accusations, which produced office jokes and comments about Petitioner and caused discomfort while in her supervisor's presence. In Stop-N-Go the claimant was granted benefits after her discharge for violation of the employer's harassment policy. The Board found that the claimant stopped by the store where she worked to pick up the keys for another store and that when she asked a male co-worker for the keys he threw them at the claimant. The coworker called the claimant a bitch when she inquired about his behavior, and in response the claimant called the co-worker "gay" after he yelled at her and chased her from the store. The Board concluded that the claimant had used poor judgment but that her conduct did not rise to the level of willful misconduct. In affirming the grant of benefits, the Court observed that even if the claimant went to the store to discuss DAS-R - 21

22 her relationship with the co-worker, it was the co-worker and not the claimant who "started the fight." Id. at 562. In addition, the Court stated that the Board was not required to find that the claimant harassed the co-worker merely because she had committed a similar offense in the past. The facts in the case sub judice are more compelling. Petitioner was accused of having an affair with her supervisor, which according to Petitioner held her up to ridicule among the employees. Petitioner's conduct in responding to the accusations by to the accusers is not tantamount to harassment, nor was her sending the for "an employee's private business." Board's Finding of Fact No. 2. She responded to the co-workers by using the internet system to deal with a workrelated matter involving the co-workers and her supervisor and events that occurred in the workplace. While there is no question that the Board erred in denying benefits to Petitioner based on willful misconduct, equally important is the Board's failure to grant reconsideration of its order based upon the parties' stipulation for a remand. In her appeal to the Board from the referee's decision, Petitioner requested a remand based on the stipulation so that Employer could withdraw its opposition to the application for benefits. The Board admits in its brief that it failed to address the stipulation in its June 24, 2008 decision but asserts that its error nonetheless was harmless. The Board relies on the principle that the parties may not determine whether an employee is entitled to benefits where the law states that the employee is not so entitled, citing Still-Hopkins v. Unemployment Compensation Board of Review, 563 A.2d 1288 (Pa. Cmwlth. 1989). The facts in Still-Hopkins are totally distinct from the situation here in that the claimant was granted benefits by the referee; the employer appealed to the DAS-R - 22

23 Board and obtained a reversal of the referee's decision, and after a remand to the referee for further testimony the Board found that the claimant committed willful misconduct. Upon further appeal the claimant requested a remand so that the employer could withdraw its opposition. This Court held that the parties could not enter into a subsequent agreement that is contrary to the Board's determination. However, the stipulation here was not subsequent to the Board's determination. It was entered into prior to the Board's merits determination, and more importantly it was not an agreement that was contrary to findings made by the Board. There were no Board findings on the merits when the parties stipulated. Accordingly, Still- Hopkins does not apply, and, as a result, the Board abused its discretion in failing to grant Petitioner's request for reconsideration of the June 2008 order and to remand this matter to the referee. In Payne v. Workers' Compensation Appeal Board (Elwyn, Inc.), 928 A.2d 377 (Pa. Cmwlth. 2007), the Court reiterated that an administrative agency's decision to grant or deny reconsideration of its order is a matter of administrative discretion and that the decision will be reversed only when there is an abuse of discretion. The Court quoted the Supreme Court's explanation that "an abuse of discretion occurs 'when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.' " Id., at 379. The Board recognizes its failure to address the stipulation yet argues that its decision should nonetheless be affirmed because the evidence supports a finding of willful misconduct. To the contrary, the Board's judgment in connection with the request for reconsideration was unreasonable, particularly when the stipulation and request for a remand were made more than two DAS-R - 23

24 months prior to the Board's decision on Petitioner's appeal and the facts do not support a finding of willful misconduct. The majority discusses at length the decision in Department of Labor and Industry v. Unemployment Compensation Board of Review, 418 Pa. 471, 211 A.2d 463 (1965), to support its view that Petitioner and Employer cannot stipulate to resolve Petitioner's application for benefits because, among other things, the Board has the responsibility to protect the unemployment compensation fund and must investigate the circumstances of an application irrespective of the employer's representations. In short, an employer may never withdraw its opposition to a claim for benefits. While the majority quotes liberally from Department of Labor and Industry, that case has no applicability whatsoever because it involved, as the court described, a planned and intentional system of unemployment devised by the parties to create eligibility for benefits from the unemployment compensation fund in instances of "contrived" periodic lay-offs of senior employees under a collective bargaining agreement between the company and its employees. The Board's order denying benefits should be reversed as its findings do not support a determination of willful misconduct. At a minimum, however, the Court should reverse the Board's July 2008 order based on an abuse of discretion standard in denying Petitioner's reconsideration request, and this matter should be remanded for the referee to conduct a hearing pursuant to the stipulation. DORIS A. SMITH-RIBNER, Judge DAS-R - 24