Tuesday, March 17, 2015

UC - willful misconduct - burden of proof - claimant testimony - duty of referee

Wagner v. UCBR – Cmwlth.  Court – March 11, 2015



This claimant was hoisted by his own petard.  


The employer did not appear at the hearing, at which the issue was willful misconduct.  Claimant did appear and testified.  Some of the testimony was elicited by the referee’s questions to claimant.


The court rejected Claimant’s argument that the Referee should have adjourned the hearing when Employer failed to appear and granted him unemployment compensation. Claimant’s argument misconstrues both the assignment of the burden of proof and the role of the Referee under the Law.  A referee is charged with informing the parties of their rights, the procedure to be followed, and with developing an adequate record, which includes clearly establishing the allegations made and the facts at issue to insure that compensation is paid in instances where a claimant is eligible and that it is not paid where a claimant is ineligible under the Law. Bennett v. UCBR, 445 A.2d 258, 259 (Pa. 1982); 1982); Hackler v. UCBR, 24 A.3d 1112, 1116 (Pa. Cmwth. 2011); Robinson v. UCBR, 431 A.2d 378, 379 (Pa. Cmwlth. 1981); see also 34 Pa. Code § 101.21.


The referee is not required to “advise an uncounseled claimant on specific evidentiary questions or points of law, nor need the referee show any greater deference to an uncounseled claimant than that afforded a claimant with an attorney.” Brennan v. UCBR, 487 A.2d 73, 77 (Pa. Cmwlth. 1985) (internal citations omitted).   In unemployment compensation matters, “the assignment of the burden of proof to one or the other party can only be understood as an indication of the quantum of evidence required to sustain a result in a party’s favor. The question of the sufficiency of the evidence must be examined against the complete record. The effect of the claimant’s testimony remains the same whether presented before or after an employer’s.” Vann v. UCBR, 494 A.2d at 1081, 1085 (Pa. 1985). As this Court and our Supreme Court have repeatedly made clear, the referee is not there to act as an advocate for the claimant and “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Id. at 1086 (quoting Groch v. UCBR, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).


A claimant’s admissions are sufficient to carry an employer’s burden. Sargent v. UCBR, 630 A.2d 534, 537 (Pa. Cmwlth. 1993) (“Employer in this case did not present any evidence. Claimant, however, chose to testify and [our] Supreme Court has made it clear that in such a situation a claimant’s own testimony can be a basis to deny benefits.”); Robinson, 431 A.2d at 379 (“[claimant] himself admitted that he neither reported to work as instructed on October 22 nor notified his employer of the reason for his absence. It is, therefore readily apparent that claimant is guilty of willful misconduct and that his employer has met its burden in that regard.”); Rodgers v. UCBR, 397 A.2d 1286, 1288 (Pa. Cmwlth. 1979) (holding that the claimant’s own testimony carried the employer’s burden of proof).


The evidence supporting the Board’s findings of fact consists of documents submitted into the record by both Claimant and Employer, and testimony offered by Claimant at the continued hearing and at the remand hearing. Contrary to Claimant’s contention, Employer was not required to offer testimony in order to carry its burden under the Law. Claimant had an opportunity to object to the documentary evidence submitted by Employer and declined to do so.




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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