Powell v. Unemployment Comp. Bd. of Review

• Decision Date: 28 March 2017
• Docket Number: No. 38 MAP 2016,38 MAP 2016
• Parties: Gary H. POWELL v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW Joe Krentzman & Sons, Inc., Intervenor Appeal of: Unemployment Compensation Board of Review
• Court: Pennsylvania Supreme Court

157 A.3d 884

Gary H. POWELL

v.UNEMPLOYMENT COMPENSATION BOARD OF REVIEW

Joe Krentzman & Sons, Inc., Intervenor

Appeal of: Unemployment Compensation Board of Review

No. 38 MAP 2016

Supreme Court of Pennsylvania.

SUBMITTED: September 14, 2016

DECIDED: March 28, 2017

James Patrick Barker, Esq., Disciplinary Board of the Supreme Court of PA, for Amicus Curiae.

Schaun D. Henry, Esq., McNees, Wallace & Nurick, LLC, for Intervenor.

Andrew J. Ostrowski, for Possible Intervenor.

Gerard Matthew Mackarevich, Esq., Janet Marie Tarczy, Esq., Pennsylvania Unemployment Compensation Board of Review, for Appellant.

Gary H. Powell, pro se.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We granted discretionary review to consider whether an attorney who has been suspended from the practice of law by this Court may represent a claimant in unemployment compensation proceedings. A divided three-judge panel of the Commonwealth Court determined the claimant is entitled to his choice of representative, even if that representative is a suspended attorney, and remanded for a new hearing. We affirm the decision to remand, but reverse the Commonwealth Court's holding that a suspended attorney may represent claimants in unemployment compensation proceedings.

This case arises from the unemployment compensation claim filed by appellee Gary H. Powell.¹ The Unemployment Compensation Service Center determined appellee was ineligible to receive benefits pursuant to Section 402(b) of the Unemployment Compensation Law (the UC Law) because he voluntarily quit his job with Joe Krentzman & Sons (employer), without "cause of a necessitous and compelling nature." See 43 P.S. § 802(b) (employee ineligible for compensation when unemployment is due to voluntarily leaving work without cause of necessitous and compelling nature). Appellee challenged the finding and referee Brian L. Parr scheduled a hearing to review appellee's claim. Appellee arrived at the hearing on December 5, 2013, with Donald A. Bailey, who stated he was present as appellee's pro bono advocate. Bailey admitted he was suspended from practicing law, by order of this Court dated October 2, 2013, for a period of five years.² Original Record (O.R.) at Item 12, Notes of Testimony (N.T.) 12/5/13 at 1. Referee Parr allowed Bailey to participate in the hearing, which proceeded until Parr continued the matter to allow service of subpoenas on necessary fact witnesses.

Prior to further proceedings on appellee's claim, however, employer, which had been previously acting pro se , obtained counsel. Employer's counsel promptly objected to Bailey's participation, asserting Pennsylvania Rule of Disciplinary Enforcement 217(j)(4)(vii), Pa.R.D.E. 217(j)(4)(vii), prohibits a suspended attorney from appearing in any hearing or proceeding before a referee.³ Bailey was given the opportunity to rebut employer's argument that Disciplinary Enforcement Rule 217 prohibited his participation and he did so by letter, directing employer's attorney to review the language of the notice of hearing sent to each party, which expressly advised appellee he could "represent [him]self or [he] may be represented by an attorney or any other advocate of [his] choice." O.R. at Items 7, 14. See also Section 214 of the UC Law, 43 P.S. § 774 ("Any party in any proceeding under this act before the department, a referee or the board may be represented by an attorney or other representative.").

After consulting with Unemployment Compensation Board of Review (UCBR) counsel, newly assigned referee Susan G. Hess, by letter dated February 6, 2014, informed Bailey he would not be allowed to represent appellee and directed Bailey to notify appellee he could engage other representation. O.R. at Item 22. Referee Hess then conducted further proceedings on March 26, 2014, which appellee attended with Andrew J. Ostrowski. Referee Hess determined through questioning that Ostrowski's attorney license had also been suspended.⁴ O.R. at Item 30, N.T. 3/26/14 at 1. Referee Hess then gave Ostrowski the opportunity to argue why Disciplinary Enforcement Rule 217 did not preclude his participation in the hearing, id. , N.T. at 1–2, and ultimately concluded Ostrowski would be permitted only to observe the proceedings. Appellee thereafter represented himself, and following the hearing, Referee Hess determined appellee was ineligible to receive benefits.

On appeal, the UCBR affirmed the denial of benefits and also concluded the referee properly excluded Bailey and Ostrowski from representing appellee. The UCBR opined Referee Hess had correctly addressed the representation issue by notifying Bailey and the parties that appellee was not permitted to have a suspended attorney as a representative at the continued hearing. UCBR Decision at 3. The UCBR concluded Disciplinary Enforcement Rule 217(j)(4)(vii) barred Ostrowski from participating in the hearing, appellee had a sufficient opportunity to find proper legal or non-legal representation, and appellee received a full and fair hearing, with the opportunity to testify and submit evidence and cross-examine the employer's witnesses. Id.

Appellee filed a pro se petition for review in the Commonwealth Court and employer intervened. A divided panel of the Commonwealth Court vacated the UCBR's ruling and remanded the matter for a new hearing. Powell v. UCBR , 128 A.3d 315 (Pa. Cmwlth. 2015).⁵ The majority analyzed the interplay between Section 214 of the UC Law, the reasoning of the Opinion Announcing the Judgment of the Court (OAJC) in Harkness v. UCBR , 591 Pa. 543,920 A.2d 162 (2007),⁶ and Disciplinary Enforcement Rule 217.

The Commonwealth Court acknowledged Disciplinary Enforcement Rule 217 specifically prohibits formerly admitted or suspended attorneys—such as Bailey and Ostrowski—from "appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body." Powell , 128 A.3d at 320, quoting Pa.R.D.E. 217(j)(4)(vii) (emphasis omitted). The court also recognized Section 214 of the UC Law allows a party in unemployment compensation proceedings to be represented by "an attorney or other representative," including non-attorneys. The court then noted that, in Harkness , the OAJC concluded representation of a party before a unemployment compensation referee does not constitute the practice of law because such proceedings are "largely routine and primarily focused on creating a factual basis, or record, by which the referee can render a decision" and the nature of the proceedings is remedial and designed to be brief and informal. Powell , 128 A.3d at 320, quoting Harkness , 920 A.2d at 166, 168–69 (OAJC).

The Commonwealth Court concluded the UCBR improperly precluded suspended attorneys Bailey and Ostrowski from representing appellee because Section 214 of the UC Law gives a party the statutory right to choose his representative before an unemployment compensation referee, and under Harkness such representation does not constitute the practice of law. Powell , 128 A.3d at 320. The court rejected the UCBR's reliance upon the Disciplinary Enforcement Rules for its contrary decision because, in its view, enforcement of the Disciplinary Enforcement Rules falls within the exclusive authority of the Pennsylvania Supreme Court and the Disciplinary Board. Id. at 321, citing Pa.R.D.E. 201(a) (exclusive disciplinary jurisdiction of Supreme Court and Disciplinary Board under these rules extends to attorney admitted to practice law in Commonwealth and formerly admitted attorney). The court acknowledged this Court previously held a suspended attorney in contempt for violation of Disciplinary Enforcement Rule 217(j) for representing claimants in unemployment proceedings. Powell , 128 A.3d at 321, citing In the Matter ofDavid Louis Bargeron, No. 1073 DD3, 2011 Pa. LEXIS 1695, at *1 (Pa. July 27, 2011) (per curiam) (holding suspended attorney in contempt of Rule 217(j) and ordering attorney to immediately cease and desist from all activities in connection with representation of claimants and employers in unemployment compensation proceedings and comply with all provisions of Rule 217 ). The Commonwealth Court nevertheless concluded it was more consistent with Section 214 of the UC Law and Disciplinary Enforcement Rule 217(j) for the referee to allow a suspended attorney to participate, advise him that his continued representation could subject him to sanctions for violation of Disciplinary Enforcement Rule 217, and report the attorney to the Disciplinary Board for further action as in Bargeron. Powell , 128 A.3d at 321.

The UCBR filed a petition for allowance of appeal, and we granted review of the following question: "Should a Commonwealth agency be required to allow a suspended attorney to represent a party in its hearings and proceedings?" Powell v. UCBR (Joe Krentzman & Sons, Inc.) , 134 A.3d 448 (Pa. 2016).

The UCBR asserts the Commonwealth Court's decision undermines the attorney disciplinary system created to protect legal consumers from persons found unqualified to serve as attorneys. The UCBR argues the Commonwealth Court ignored the plain language of Section 214 of the UC Law which authorizes representation by either an "attorney" or "other representative" and Bailey and Ostrowski fall in neither category as they are "formerly admitted attorneys." UCBR Brief at 12–13. In the UCBR's view, the court's reliance on Harkness is misplaced because the two-Justice OAJC addressed representation by non-attorneys, but did not account for "formerly admitted attorneys" who have been suspended and therefore are prohibited by the Disciplinary Enforcement Rules from appearing before a referee. According to the UCBR, the Disciplinary Enforcement Rules do not simply govern the practice of law, but also the conduct of attorneys and formerly admitted attorneys. Id. at 13–14, citi...