UCBR improperly applied sec. 402(b) [voluntary quit] after
the referee decided the case under sec. 402(e) [willful misconduct.
The
UCBR’s regulations limit the issues that it may consider on appeal. The
regulation at 34 Pa. Code §101.107 (emphases added) provides:
(a)
In connection with the consideration of an appeal to the [UCBR] from the
decision of a referee, the [UCBR] may consider an issue in the case though not
expressly ruled upon in the decision of the Department or the referee and
though not previously raised in the claim or appeal proceedings. However, issues
not previously considered or raised will not be considered by the [UCBR] . . .
unless the speedy administration of justice, without prejudice to any party,
will be substantially served thereby and are supported by the record.
(b) The [UCBR] shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case, with the approval of the parties, may be determined though not expressly ruled upon or indicated in the notice of hearing, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
The
“notice of hearing” referred to in subsection (b) of the regulation is the
notice required when the UCBR determines that a further hearing is necessary,
not the referee’s notice of hearing. Mellott v. Unemployment Compensation
Board of Review, 523 A.2d 412, 414 (Pa. Cmwlth. 1987); Libonate v.
Unemployment Compensation Board of Review, 426 A.2d 247, 248-49 (Pa.
Cmwlth. 1981); see also 34 Pa. Code §101.105(a).
Here,
the record establishes that the only section of the Law at issue before the
service center and the referee was section 402(e). Employer’s initial separation information
stated that Claimant was discharged, and Employer’s petition for appeal to the
referee specified that only section 402(e) was at issue. The referee’s notice
of hearing also identified section 402(e) as the “specific issue[] to be
considered” at the hearing. Moreover, at
the hearing, Employer’s witness testified that it was “Employer’s contention”
that “[Claimant] was discharged” from her position. Neither Employer nor Claimant raised the
voluntary quit issue at any stage of the proceedings. Rather, the UCBR raised
the issue sua sponte with no notice to the parties that it would
consider additional issues.
We find Libonate instructive
here. In that case, both the local service center and the referee found the
claimant ineligible for benefits under section 402(a) of the Law, 43 P.S.
§802(a). The UCBR, which took no additional evidence, found the claimant
ineligible under section 401(d) of the Law, 43 P.S. §801(d). Libonate,
426 A.2d at 248. On appeal, the claimant argued that the UCBR improperly relied
on section 401(d) because her eligibility under that section was never decided
by the referee and she had no opportunity to present evidence on that issue. Id.
Applying the regulation at 34 Pa. Code §101.107(b), this court remanded for
a new hearing. We specifically rejected the UCBR’s argument that the claimant
was notified that section 401(d) would be considered because that issue was
listed on the “form” notice sent to all claimants before a referee’s hearing. Id.
at 249. We also found that the record contained no written notice to the
parties that the UCBR would consider additional issues on appeal. We explained
Because
the [UCBR] disallowed the claimant’s appeal from the referee’s decision on
different grounds than that relied upon or considered in the referee’s
determination, we must conclude that the claimant was denied an effective
opportunity to be heard on the determinative issue of her availability for work. Id.; see also Feinberg v.
Unemployment Compensation Board of Review, 448 A.2d 664, 665-66 (Pa.
Cmwlth. 1982) (vacating and remanding for a new hearing where the service
center denied benefits under section 402(e) and the issue at the referee’s
hearing was whether claimant committed willful misconduct, but the referee and
the UCBR found the claimant ineligible under section 402(b)).
Similarly, Employer in this case had the burden of
proving that Claimant was discharged for willful misconduct. If the referee had
considered the voluntary quit issue, Claimant would have had the burden of
proving that she had a necessitous and compelling reason for leaving her
employment. See Hine v. Unemployment Compensation Board of Review, 520
A.2d 102, 105 (Pa. Cmwlth. 1987). A claimant is necessarily prejudiced when the
referee and the UCBR decide the claimant’s eligibility under different sections
of the Law carrying different burdens of proof with no notice to the parties. See
Corbacio v. Unemployment Compensation Board of Review, 466 A.2d 1117, 1119
& n.4 (Pa. Cmwlth. 1983). Because Claimant would have been prejudiced by
having to assume the burden of proof on the voluntary quit issue, the UCBR’s
regulation precluded it from considering that issue. See 34 Pa. Code §101.107.
Accordingly, we vacate the UCBR’s order and remand
this matter to the UCBR either to consider Claimant’s eligibility under section
402(e) of the Law or to conduct a further hearing with notice to the parties
that it will consider Claimant’s eligibility under section 402(b) of the Law.
