O’Leary v. UCBR – Cmwlth. Court – October 27, 2021 – unreported memorandum decision**
Held: UCBR decision vacated and case remanded for consideration of merits where there were substantial phone problems, none of which were the fault of the claimant.
From the opinion—
No evidence of fault on part of claimant
[W]e do not believe that there is evidence that Claimant “failed to appear” in any real sense—because of the pandemic, the hearing was required to be telephonic. The evidence in the record indicates that Claimant was doing exactly what he had been directed to do: waiting by his cell phone at the appointed time for the call from the Referee’s office. Further, there is no evidence that during the first hearing he failed to heed the directive of the hearing notice regarding his cell phone’s ability to receive calls from a source with a Caller ID block7—the record does not reflect the reason for the failure of his cell phone to ring. Claimant’s undisputed testimony was that he did what he could to remedy the situation “in real time,” as the hearing was being conducted in his absence. . . . .There is no indication in the record who was at fault for the dropped call at that point8—merely that there was a dropped call and that no further attempts were made to contact the attorney. At this point, neither Claimant nor his attorney could participate because the telephone hearings were arranged in such a way that parties and their counsel could not call into the hearing but could only be connected when the Referee called them.
Responsibility for technological problems
The UCBR does not cite—and our own review of UCBR regulations fails to find—any authority for the proposition that “[p]arties are responsible for their own technology and in charge of their phone and incoming calls,” let alone any regulation suggesting that technological difficulties of unknown cause9 can preclude a party from having his day in court. Even though an administrative tribunal has discretion over how to conduct a hearing, there are still “certain fundamental rights that must be honored, including the right to a fair hearing in accordance with due process of law.” Collins v. UCBR, 415 A.2d 145, 146 (Pa. Cmwlth. 1980). While not involving a telephone hearing, this Court in Collins found a violation of due process when a hearing was conducted without the claimant and his attorney despite their presence in the referee’s waiting room, and thus vacated the Board’s order and remanded for a new hearing. Although not directly controlling, we find its analysis applicable here. See also Hoover v. UCBR., 509 A.2d 962, 963 (Pa. Cmwlth. 1986) (reversing for a new hearing where the use of a telephone in an unemployment compensation hearing precluded the claimant from presenting documents into evidence, and the referee “simply ignored the claimant’s proffer”).
Referee actions -- We recognize that the Referee was put in a difficult situation on the day of the first hearing, given the obligation to connect multiple parties telephonically, apparently without assistance. We do not fault her for her actions. However, that the Referee herself encountered technological difficulties underscores the unreasonableness of depriving Claimant of his right to present his case because he was unable to receive her calls.
Conclusion – In light of the foregoing, we must conclude that on the facts of this case the UCBR abused its discretion by refusing to consider Claimant’s testimony during the remand hearing.Accordingly, we vacate the order of the UCBR and remand for consideration of the merits of this claim on the evidence already adduced, including the testimony of Claimant at the second hearing.
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**An unreported, non-precedential Commonwealth Court case can be cited for its persuasive value but is not binding precedent. See 210 Pa. Code § 69.414(b) and Pa. R.A.P. 3716.
