Saturday, April 25, 2015

UC - appeal - preservation of issues - waiver - Merida v. UCBR not applicable

TIMI Plastics v. UCBR – Cmwlth. Court – March 30, 2015 – reported memorandum opinion

The court rejected the employer’s argument that the claimant waived consideration of the relevant issue – willful misconduct, for alleged refusal of the claimant, a truck driver, to follow an employer order to make a delivery run – because claimant’s petition appeal to the Board lacked specificity, as required by Merida v. UCBR, 543 A.2d 593 (Pa. Cmwlth. 1998), appeal dismissed as improvidently granted, 570 A.2d 1320 (Pa. 1990).   In his petition to the Board, claimant wrote, in full:  “Layer (sic) didn’t do his job. Need to cross-examine ex-employer – Brad Aronson and Joe Benjeman (sic) to prove their statements are wrong and misleading.”  

The court rejected this argument because the referee did consider and rule on the issue, as did the Board, all pursuant to UC regs.   “Merida does not apply here. That case is limited to its factual scenario where the claimant did not specifically raise before the Board an issue that was not discussed by the referee in his decision.”  (emphasis in original).  

Here, as in Black Lick Trucking, Inc. v. UCBR, 667 A.2d 454 (Pa. Cmwlth. 1995),, the issue before the Service Center was whether Claimant was discharged for willful misconduct because he did not agree to drive to New Jersey on August 27, 2013. The referee considered this very issue and determined that Claimant’s conduct amounted to willful misconduct. Pursuant to Board regulation 101.107(b), 35 Pa.Code §101.107(b),  the Board was required to consider whether Claimant was discharged for willful misconduct for his failure to drive on a particular assignment, regardless of whether Claimant’s Petition for Appeal to the Board specified this issue. The Board did precisely what it was required to do. There was no waiver.”

Appeals from a referee’s decision to the Board are governed by the Board’s regulations. Board regulation 101.81 (governing appeals from the Department) and 101.102 (governing appeals from referee to the Board) 34 Pa.Code §§101.81 and 101.102, indicate only that a party must set forth its “reasons for appeal,” without further elaboration as to the detail required to satisfy this condition.

 Further, Board regulation 101.87, 34 Pa.Code §101.87, states, in part:

When an appeal is taken from a decision of the Department [job center], the Department [job center] shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeals the tribunal [referee] shall consider the issues expressly ruled upon the decision form which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard.

 Board regulation 101.107(b), 35 Pa.Code §101.107(b), provides in part:

The Board shall consider the issues expressly ruled upon in the decision [of the referee] from which the appeal was filed.

This Court has interpreted these sections to mean that whatever issues the job center addressed, the referee should likewise address, and the Board, in turn, should decide all of the issues the referee considered, regardless of whether a party specifically raised the issue on appeal to the Board. See Jordan v. UCBR, 547 A.2d 811 (Pa. Cmwlth. 1988).
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.
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