Monday, July 25, 2011

UC - pro se party - referee duty to assist

Hackler v. UCBR - Cmwlth. Court - July 15, 2011

UCBR decision reversed and remanded because the Referee failed to adequately assist the pro se claimant during the evidentiary hearing, as required by 34 Pa. Code § 101.21.

In interpreting this regulation, the courts have held that, in addition to advising pro se parties of their rights and aiding them in questioning witnesses, referees should reasonably assist pro se parties to elicit facts that are probative for their case. Bennett v. UCBR, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982). In Bennett, the court said that: The referee has a responsibility . . . to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed to insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits. Id. (emphasis in original).

While the referee “need not advise a party on evidentiary questions or on specific points of law,” the referee “must act reasonably in assisting in the development of the necessary facts.” Id. at 260 (first emphasis added); see also, UCBR v. Ceja, 493 Pa. 588, 611-12, 427 A.2d 631, 643 (1981) (plurality opinion) (stating that referees have an affirmative duty to afford claimants a reasonable opportunity to challenge hearsay evidence, and that a pro se party must be given “every assistance compatible with the impartial discharge of [the tribunal’s] official duties,” (quoting 34 Pa. Code § 101.21)). In determining whether the referee has given a pro se claimant reasonable assistance at an evidentiary hearing, the courts consider the referee’s approach in questioning the parties.

Obstruction of claimant's attempt to present evidence - In Ceja, “the referee’s conduct of the hearing fell far short of protecting the rights of the unrepresented claimant” because the referee interrupted the claimant when she attempted to object to hearsay evidence offered by the employer. Id. at 613-14, 427 A.2d at 644. The Ceja plurality opinion found that the referee “fell short of the regulatory mandate” set forth in Section 101.21 because, instead of aiding the claimant’s attempt to stop the employer from reading unsubstantiated hearsay documents into the record, the referee told the claimant to “[l]et him finish.” Id. at 612-13, 427 A.2d at 644. Writing for the plurality, Justice Kauffman pointed out that the claimant received “virtually no meaningful opportunity to challenge the hearsay documents . . . much less cross-examine the declarants.” Id. Although the claimant made “one attempt” to challenge the hearsay evidence, the referee “rebuffed” her. Id. After the employer testified, the claimant again tried to add to her own testimony, but “the referee replied in a manner designed to abbreviate claimant’s reply,” which led to a “confused and convoluted account” from the claimant. Id. at 613, 427 A.2d at 644. Justice Kauffman concluded that, “[i]nstead of making a sincere effort to unravel claimant’s testimony . . . the referee . . . in effect cross-examined her” in a way that favored the employer. Id.

Failure to help claimant to bring out facts - Another component of a referee’s reasonable compliance with the regulatory obligation to assist unrepresented parties is guiding the parties to bring out facts of which the referee knows or should know. For example, the claimant in Bennett, a hotel bartender, testified that she experienced sexual harassment on the job. Bennett, 445 A.2d at 260 n.6. Documentation in the record corroborated her testimony. Id. However, the referee “did not ask [the pro se claimant] questions sufficient to enable her to emphasize the factual aspects of her contentions,” although doing so might have enabled the claimant to show “a necessitous and compelling cause for her voluntary termination of her employment.” Id. at 260. This Court found that the referee “should have more thoroughly and reasonably extracted testimony on these points in the interests of fairness.” Id. at 260 n.6 (emphasis in original). Therefore, this Court reversed the Board’s order and remanded the case for an evidentiary hearing. Id. at 260. Similarly, in Tate v. Unemployment Compensation Board of Review, 477 A.2d 54, 55 (Pa. Cmwlth. 1984), this Court found that there was no “full and fair hearing” where the referee did not assist the pro se claimant to meet her burden to show that impending homelessness was the compelling reason why she left her job. Id. In Tate, the claimant was living in a campground tent as winter approached. Id. Her testimony suggested that she would have become homeless if she had not moved away to rejoin her husband, who had accepted a job in a distant town. Id. However, “the referee . . . failed to ask [the claimant] important questions concerning the reasons for her termination of her employment . . . which were suggested by her testimony.” Id. at 56. Although the prospect of homelessness might have supplied a “compelling economic reason[]” for the claimant to leave her job, “the referee asked no more questions about this issue.” Id. at 55. Accordingly, this Court in Tate remanded the case to the Board for further proceedings. Id. at 57.

The instant case - In this case, the evidentiary hearing was conducted in a manner similar to those found deficient in Bennett, Ceja, and Tate. The Referee did not question Claimant on issues that the Referee knew or should have known Claimant wanted to pursue. For example, Claimant raised several issues in his Petition to Appeal, a document that the Referee placed into evidence. Specifically, in the attachment to Claimant’s Petition to Appeal, Claimant stated that he experienced verbal abuse on the job, affirmed that he always did honest work, and denied that he received “any type of warning.” However, this information was never presented at the hearing, and the Referee did not elicit this information from Claimant through the very strict question-and-answer format the Referee employed during Claimant’s testimony.

Additionally, the Referee here bypassed “important questions . . . which were suggested by . . . testimony.” Tate, 477 A.2d at 56. For instance, the Referee did not ask Claimant about his initial attempt to deny willful misconduct, or about his version of what occurred at his place of employment. Instead, the Referee constrained Claimant’s testimony, asking Claimant specific questions which did not allow for open-ended answers. This manner of proceeding did not elicit significant testimony regarding issues set out in Claimant’s Petition to Appeal or those about which Claimant tried to present testimony during other parts of the hearing. Claimant did not have an opportunity to speak, unconstrained by the Referee’s questions, until the end of the hearing after the testimony had closed. At that point, Claimant tried to present his side of what occurred but, because the testimony was closed, the Referee did not permit Claimant to set forth his side of the case. This falls short of the standard expressed in Section 101.21.

Additionally, no fewer than ten times, the Referee interrupted Claimant’s questioning of Employer during cross-examination with regard to the inspection incident and prevented him from completing that line of questioning. The Referee intervened and distracted Claimant’s train of thought nearly every time Claimant was invited to speak. Just as in Ceja, the many interruptions deprived Claimant of the process he was due under 34 Pa. Code § 101.21.

The record also establishes that after the Referee explained the rights of the parties to testify, to introduce evidence, and to cross-examine witnesses, and after he expounded on the complex legal burden of proof in meticulous detail, Claimant indicated to the Referee that he did not understand; however, the Referee quickly glossed over Claimant’s befuddlement and cut Claimant’s testimony off twice when Claimant tried to refute the charge of willful misconduct.

While the Court notes the heavy caseload referees are faced with in this economic climate and the resulting need for referees to expedite hearings, referees must nonetheless comply with the legal requirement of 34 Pa. Code § 101.21 by assisting pro se claimants to focus on the issues and testimony that will be relevant to their eligibility for benefits. The Claimant was prejudiced by the Referee’s failure to conduct the hearing in accordance with the requirements of 34 Pa. Code § 101.21. The Referee not only did not assist Claimant, but Claimant’s attempts to offer contrary evidence were stifled. The Board failed to perceive this irregularity and, for that reason, the court held that the Board erred in affirming the Referee’s Decision and finding that the Referee did not violate Claimant’s right to a fair hearing under 34 Pa. Code § 101.21.