Harkness v. UNEMPLOYMENT COMPENSATION BD.

• Decision Date: 03 February 2005
• Citation: 867 A.2d 728
• Parties: Lani G. HARKNESS, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
• Court: Pennsylvania Commonwealth Court

867 A.2d 728

Lani G. HARKNESS, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.

Commonwealth Court of Pennsylvania.

Argued November 3, 2004.

Decided February 3, 2005.

Steven E. Hoffman, Allentown, for petitioner.

Gerard M. Mackarevich and Roger H. Caffier, Harrisburg, for respondent.

BEFORE: COLINS, President Judge, and McGINLEY, J., SMITH-RIBNER, J., LEADBETTER, J., COHN JUBELIRER, J., SIMPSON, J., and LEAVITT, J.

OPINION BY Judge McGINLEY.

Lani G. Harkness (Claimant) petitions for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's denial of benefits by Federated Logistics t/a Macy's Department Store (Employer) pursuant to Section 402(e) of the Unemployment Compensation Law (Law).¹

The facts initially found by the Referee and adopted by the Board are as follows:

1. For this appeal, the claimant was last employed by Federated Logistics t/a Macy's Department Store for about 26 months. The claimant's last day of work was August 22, 2003, at the wage rate of $10.80 per hour plus 3% commission.

2. The claimant was employed by Macy's, as a beauty advisor for Estee Lauder products.

3. On August 11, 2003, a customer became somewhat rude with the claimant in a discussion about an eye concealer product, which was not presently available, and its potential price if ordered.

4. The customer then informed the claimant she did not want a "bitch" like her to wait on her.

5. The claimant, despite the accelerated confrontation, did not attempt to obtain a supervisor or manager, nor request that a nearby co-worker do so for her.

6. The customer made gestures such as kissing sounds, which the claimant found offensive and asked the claimant how old she was.

7. The claimant considered calling security but did not do so.

8. Ultimately the claimant told the customer "get your fat ass out of here."

9. As the claimant was aware from the rules in the employee handbook, the use of lewdness and/or use of obscenities or vulgarities towards a customer may be grounds for immediate termination without prior warning.

10. The claimant was not immediately disciplined by her department manager, who then intervened to appease the customer, but on August 22, 2003 (the claimant had a one week vacation during the interim), the claimant was called into the store manager's office and terminated from the employment for her remark to the customer.

Referee's Decision (Decision), November 4, 2003, Findings of Fact Nos. 1-10 at 1-2.

Claimant applied for unemployment compensation benefits and was denied benefits by a UC Service Center. Claimant appealed to the Referee. At the hearing, Employer was represented by William Forrest (Forrest) an employee of TALX UC EXPRESS, a company located in St. Louis Missouri, in the business of representing other companies in unemployment compensation cases.² Forrest was not an attorney. Claimant objected to Employer's representation by Forrest on the grounds that Forrest was not an attorney. The Referee overruled Claimant's objection on this point and proceeded to hear the case. Forrest cross-examined Claimant, indicated that he had "no objections" to the admission of certain documentary evidence, offered an exhibit into evidence, and made a closing statement. The Referee issued a decision, based in part, on evidence developed by Forrest during the hearing.

On appeal,³ Claimant asserts it was error to permit Employer to be represented at the hearing by a non-employee, non-attorney, "tax consultant." Claimant also argues the Referee and the Board erred by concluding that she engaged in willful misconduct. She maintains her response was provoked by the customer and her language was de minimis.

First, Claimant asserts it was an error of law to permit Employer to be represented by a non-employee, non-attorney, "tax consultant." Claimant maintains that Employer's representation by Forrest constituted the unauthorized practice of law.

Employer contends that this Court should affirm the Board's approval of the Referee's decision to allow Employer to be represented by Forrest and that this Court should take into account the "informal nature of these proceedings and the relatively small amounts in controversy." Employer's Brief, May 27, 2004, at 10-11. Employer further contends that Forrest's role before the Board was not to render legal advice or otherwise practice law. Citing Henize v. Giles, 22 Ohio St.3d 213, 490 N.E.2d 585 (986), rather, Employer contends that the appearance of lay participants, such as Forrest, "facilitate the hearing process by serving as an adjunct to the claimant or employer in the sharing of their respective versions of the circumstances attendant to the claim." Board's Brief, May 27, 2004, at 11. This Court does not agree.

In considering whether an activity is encompassed within the scope of the practice of law, the type of tribunal or character of the proceeding is unimportant. "Where the application of legal knowledge and the technique is required, the activity constitutes [the practice of law] even if conducted before a so-called Administrative Board or Commission. It is the character of the Act and not the place it is performed which is the decisive factor." Shortz et al. v. Farrell, 327 Pa. 81, 85, 193 A. 20, 21 (1937); See also Westmoreland County v. RTA Group, 767 A.2d 1144 (Pa.Cmwlth.2001)

(RTA engaged in the unauthorized practice of law before the assessment board where application of legal judgment was necessary to complete the "grounds for appeal" section of the appeal form as it required familiarity with statutes and court rulings).

In Shortz, our Pennsylvania Supreme Court outlined three broad categories of activities that constitute the practice of law: (1) the instruction and advising of clients in regard to the law so that they may pursue their affairs and be informed as to their rights and obligations; (2) the preparation of documents for clients requiring familiarity with legal principles beyond the ken of ordinary laypersons; and (3) the appearance on behalf of clients before public tribunals, the application of rules of evidence, the examination and cross-examination of witnesses, and presentation of arguments in order to assist the deciding official in the proper interpretation and enforcement of the law. Shortz, 327 Pa. at 84-85, 193 A. at 21.

Here, there is no doubt that Forrest engaged in the practice of law when he appeared at the hearing before the Referee and assumed the role of advocate in furtherance of Employer's position that Claimant was discharged because of willful misconduct and that she had no right to receive unemployment compensation benefits. He conducted cross-examination. He made decisions regarding evidentiary matters, and a closing legal argument. In sum, Forrest performed the paradigmatic functions of an attorney-at-law. In so doing, he implicitly represented that he had the technical competence to analyze the legal problem faced by the Board, and that he had the requisite character qualifications to act in a representative capacity. See Dauphin County Bar Association v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976)

. This Court concludes Forrest was, in fact, engaged in the practice of law in this Commonwealth during his appearance before the Referee on Employer's behalf.

Next, this Court must analyze whether Forrest engaged in the unauthorized practice of law.

As a general rule, a non-attorney may not represent parties before the Pennsylvania courts or administrative agencies. Nolan v. Department of Public Welfare, 673 A.2d 414 (Pa.Cmwlth.1995). There are, of course, exceptions to this rule. For example, in McCain v. Curione, 106 Pa.Cmwlth. 552, 527 A.2d 591 (1987)⁴ this Court recognized that Section 702 of the Unemployment Compensation Law, 43 P.S. § 862, and departmental regulations promulgated thereunder at 34 Pa.Code § 101.41, permit an individual claiming unemployment compensation to be represented by a non-lawyer in an unemployment compensation proceeding.⁵ Employer asserts that this limited exception, which expressly applies to "individuals claiming unemployment compensation", should, by the same token, allow a corporate Employer to be represented by its non-employee, non-attorney "duly authorized representative." Again, this Court disagrees.

In The Spirit of the Avenger Ministries v. Commonwealth of Pennsylvania, 767 A.2d 1130 (Pa.Cmwlth.2001), this Court held that The Spirit of the Avenger Ministries, a non-profit association, could not be represented by its pastor, a non-attorney, in its appeal to this Court. Citing Smaha v. Landy, 162 Pa.Cmwlth. 136, 638 A.2d 392 (1994), petition for allowance of appeal denied, 539 Pa. 660, 651 A.2d 546 (1994) and Walacavage v. Excell 2000, Inc., 331 Pa.Super. 137, 480 A.2d 281 (1984), this Court reiterated the well recognized principle that a corporation, with very limited exceptions, which do not apply here, may act before a court only through an agent duly authorized to practice law.⁶

Although not controlling, it is instructive that other jurisdictions have applied this principle and held that a non-attorney does not have the right to practice unemployment compensation law in an adversary proceeding before an administrative agency.

In Reed v. Labor and Industrial Relations Commission, 789 S.W.2d 19 (Mo.1990), the Missouri Supreme Court, en banc, held that the submission of an application for review and letter briefs to the Labor and Industrial Relations Commission (Commission) by a non-attorney, local personnel employee of K-Mart constituted the unauthorized practice of law. The Commission's regulation specifically provided that "Any individual may appear for him/herself in any [unemployment compensation] hearing" and that "no one who is not an attorney may appear in a representative capacity." 8 C.S.R. 20-4(8). The Court held from that date forward, (with the exception of cases pending before the Commission),...