Bertram v. UCBR – Cmwlth. Court – March
22, 2019 – reported decision (2-1)
majority and dissenting opinions - http://www.pacourts.us/assets/opinions/Commonwealth/out/12CD18_3-22-19.pdf?cb=1
Held:
Case remanded. UCBR adopted Referee
decision, without discussion, where it had not resolved a conflict in the
evidence or made an essential crediblity determinatio.
From the opinion—
What
is “capricious disregard” of the evidence?
“We
have explained that it “occurs where the fact finder willfully and deliberately
disregards competent and relevant evidence that one of ordinary intelligence
could not possibly have avoided in reaching a result.” Wise v. UCBR, 111 A.3d
1256, 1262 (Pa. Cmwlth. 2015). More specifically, a capricious disregard of
evidence occurs “where the factfinder has refused to resolve conflicts in the
evidence, has not made essential credibility determinations or has completely
ignored overwhelming evidence without comment.” Id. at 1263. It is the
responsibility of the factfinder to resolve the conflicts in the testimony and
explain why it has accepted, or rejected, each piece of relevant evidence. Id.
The Pennsylvania Supreme Court has explained that review for capricious
disregard of competent evidence is an “appropriate component of appellate
consideration in every case in which such question is properly brought before
the court.” Leon E. Wintermyer, Inc. v. Workers’ Compensation Appeal Board
(Marlowe), 812 A.2d 478, 487 (Pa. 2002).”
The Board erred in
adopting the Referee decision, in toto,
without discussion or necessary findings
The
Referee’s factual findings are based upon the testimony of an ER witness, but
this testimony was contradicted by other testimony and by documentary evidence.
In addition, the ER witness testimony
contained inconsistencies
on the critical question on when the witness decided to fire Claimant. By contrast, the completing testimony of a
witness for Claimant was “clear” and “highly relevant.” The Referee made no comment this testimony, and
the Board “affirmed without explanation.”
The
Referee and Board did not make an adequate determination of credibility – silence is not an implicit finding
The
decisions of both the Referee and Board were silent on the testimony of CL’s
witness. The Court soundly rejected the
Board’s argument that the “Court must infer from silence that the Referee ‘implicitly”
rejected” this testimony and “implicitly accepted” the testimony of the ER
witness, in reliance on the following language from the Referee decision:
Both the claimant and the employer
appeared at the unemployment compensation hearing to present testimony and
evidence on the issues under appeal. The above findings represent the competent
evidence and credibility determinations made by the Referee in rendering the
following decision.
The
Court’s response: “We reject the Board’s argument.” It said that
* First, the “boilerplate paragraph
in the Referee’s determination is not dispositive of whether the Referee
capriciously disregarded record evidence. This paragraph is generic, not
specific to any of the evidence in this record. Simply, it is not a substitute
for express credibility determinations, and it does not discharge the Board’s
responsibility to consider and weigh the relevant evidence in a case.
* “Second, it is not the
responsibility of the reviewing court to divine the reason for the factfinder’s
silence. Here, the highly relevant testimony of a disinterested third party did
not elicit a single comment from the factfinder. As we have held, capricious
disregard of evidence occurs where the factfinder “has completely ignored
overwhelming evidence without comment.” Wise, 111 A.3d at 1263.
* “Third, implicit credibility
determinations do not resolve the conflicts between the testimonial and
documentary evidence.“
For
all of those reasons, the Court “conclude[d] that the Board has capriciously
disregarded relevant evidence.”
The Referee hearing was
the equivalent of no hearing at all.
Given
the errors listed above, “[i]t is as if Claimant did not have a de novo hearing. The Referee simply repeated, with virtually
no discussion, the findings of the UC Service Center.” The Referee did not address Claimant’s
contentions on several dispositive issues and did not resolve conflicts between
the testimony of key witness “with express credibility determinations.” The
Referee ignored, without comment, the testimony of the CL witness, as well as
some uncontradicted testimony. “Where ‘there
is strong critical evidence that contradicts contrary evidence, the adjudicator
must provide an explanation as to how it made its determination.” Bentley v.
Bureau of Professional and Occupational Affairs, 179 A.3d 1196, 1200 (Pa.
Cmwlth. 2018). The Referee disregarded “relevant
and critical evidence. . . . The Board must resolve the conflicts in the record
evidence in order for meaningful appellate review to take place. For these
reasons, the Board’s adjudication is vacated, and this matter is remanded to
the Board to issue a new adjudication in accordance with our instructions
herein. “
Dissenting opinion of
Judge Wojcik
The dissent held that the UCBR decision was
acceptable, because there is “[n]othing in the unemployment [statute or]
regulations [that] requires a referee or the Board to render a ‘reasoned’
decision that explicitly resolves all conflicting evidence. . . . While I agree
that, generally, more detailed findings and discussion by the referee or the
Board would be helpful, the findings made below are adequate to conduct
meaningful appellate review, and there is nothing of record that would justify
reversal. See Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.”
“We
have repeatedly stated that it is irrelevant whether the record contains
evidence to support findings other than those made by the fact-finder; the
critical inquiry is whether there is evidence to support the findings actually
made. Sipps v. UCBR, 181 A.2d 479, 484 (Pa. Cmwlth. 2018); Kelly v. UCBR, 172
A.2d 718, 725 (Pa. Cmwlth. 2017); Ductmate Industries, Inc. v. UCBR, 949 A.2d
338, 342 (Pa. Cmwlth. 2008). Further, we have consistently observed that, while
the Board must make crucial findings on the essential issues, “[the Board] is
not required to address specifically each bit of evidence offered.” Panella v.
UCBR (Pa. Cmwlth., No. 351 C.D. 2013, filed August 29, 2013), slip op. at 4
(citation and quotation omitted).4 See also Kunselman v. UCBR (Pa. Cmwlth., No.
444 C.D. 2012, filed February 7, 2013), slip op. at 3 n.2 (same); and Kozlina-Peretic
v. UCBR (Pa. Cmwlth., No. 1088 C.D. 2008, filed December 23, 2008), slip op. at
3 (same).”
