Vann v. Com., Unemployment Compensation Bd. of Review

• Decision Date: 28 June 1985
• Citation: 508 Pa. 139,494 A.2d 1081
• Parties: Raybelle VANN, Appellee, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellant.
• Court: Pennsylvania Supreme Court

Page 1081

494 A.2d 1081

508 Pa. 139

Raybelle VANN, Appellee, v. COMMONWEALTH of Pennsylvania, UNEMPLOYMENT COMPENSATION

BOARD OF REVIEW, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 23, 1985.

Decided June 28, 1985.

Charles G. Hasson, Harrisburg (Acting Deputy Chief Counsel), James K. Bradley, Associate Counsel, Harrisburg, for appellant.

Harold I. Goodman, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION

ZAPPALA, Justice.

We review an Opinion and Order of the Commonwealth Court, 81 Pa.Cmwlth. 189, 473 A.2d 237, holding that in an unemployment compensation benefit case where the employer has the burden of proof, the referee must explain to an uncounseled claimant that he is not required to testify and that if he does testify his testimony may be used to establish ineligibility for benefits.

The Appellee in this case, Raybelle Vann, filed a claim for unemployment compensation benefits after she was dismissed from her job as a short order cook at Casey's Bar and Restaurant in Philadelphia. The employer's statement filed on Form UC-45A in response to this application indicated that the Appellee was discharged for "unsatisfactory performance" and "willful misconduct" with the explanation that she "repeatedly refused to do the required work of a short order cook." An attached handwritten note further detailed that

[t]he day she was fired, I asked her to do some small job in the kitchen and she refused. I then waited about 15 minutes and asked her again and she told me that she did not have to do what I asked her to do. She only had to do what she thought was her job.

(Emphasis in original). These statements were signed by J.S. Goodman as president and owner of Casey's.

In the Summary of Interview Form UC-990(7), the Appellee stated that she had been separated from her employment by Joe Goodman because "I didn't do his work. I had my own work to do in 1 hour." She further explained

I had one hour to set up for lunch and break down breakfast, then start lunch order. Joe Goodman told me to set him up and I said I didn't have time because I was already behine [sic]. Joe Goodman said I was suppose [sic] to do what every [sic] he said for me to do. He told me to take off my apron and leave.

I was hired to be short order cook not preperation [sic] cook.

The claims examiner determined that the Appellee had refused to perform a work related task requested by her employer and disapproved her claim for benefits in accordance with Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, art. IV, § 402, as amended, Act of May 29, 1945, P.L. 1145, § 9, 43 P.S. § 802(e). That section provides that

[a]n employee shall be ineligible for compensation for any week ... [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.

The Bureau's determination of misconduct was appealed to a referee, who conducted a hearing on April 6, 1982. The Appellee was the only party present at this hearing. After advising the Appellee of her rights to be represented by an attorney, to cross-examine witnesses, and to present witnesses of her own, the referee entered the documents in the Appellee's file into the record. He then stated that his was a willful misconduct case and that the "burglar-proof [sic] will fall upon your employer to show your 'willful misconduct'." The referee proceeded to question the Appellee and told her she would "have a chance to explain the circumstances which brought about your unemployment." In response to the referee's questioning the Appellee testified as to the events leading up to her dismissal. Her testimony was substantially similar to the explanation on the Summary of Interview Form. The primary difference was the Appellee's explanation by way of her testimony that she was hired by Edward Goodman, Joseph Goodman's father, and that she understood that Edward, not Joseph, was her immediate supervisor and boss. She further explained that she and Joseph were essentially co-workers, the Appellee carrying out the duties of a short order cook in the kitchen, running "the grill, the steam table, the deep frier, [and] the dressing table," while Joseph Goodman took care of the cold sandwiches in the front of the restaurant.

The referee denied benefits, reasoning that the Appellee's refusal to perform a reasonable request of her boss constituted willful misconduct. On appeal, the Board of Review affirmed the referee's decision. The Board noted its finding that the employer's request was work related and reasonable and that the Appellee had not demonstrated good cause for giving precedence to her other job duties over the employer's immediate request. The Board also found that the Appellee's contention that she was not aware of the supervisory capacity of the person issuing the order was not credible. Even though the employer did not attend the referee's hearing, the Board determined that the Appellee's voluntary testimony carried the employer's burden of establishing her willful misconduct, citing Rodgers v. Unemployment Compensation Board of Review, 40 Pa.Cmwlth. 552, 397 A.2d 1286 (1979).

In her appeal to the Commonwealth Court, the Appellee argued that it was error for the referee not to instruct her that the employer had the burden of proof and that she had the right to decline to testify. She also argued that the Board erred in concluding that her choice between competing duties constituted willful misconduct.

In Harring v. Unemployment Compensation Board of Review, 70 Pa.Cmwlth. 173, 452 A.2d 914 (1982), the court held that a negative inference from a party's refusal to testify, although permissible for other purposes, could not be considered as "evidence" established by the party with the burden of proof. The only evidence offered on behalf of the employer was a hearsay letter. Absent the inference from the claimant's silence, there was no corroboration of the hearsay evidence as required under Walker v. Unemployment Compensation Board of Review, 27 Pa.Cmwlth. 522, 367 A.2d 366 (1976), and thus no basis for a finding that the burden of proof had been met. The court accordingly reversed and remanded for the computation of benefits. In the present case, the court reasoned that the substantive rule of Harring would have applied if the uncounseled claimant had been aware of her "right" to remain silent in the face of uncorroborated hearsay which by itself could not have supported a finding in favor of the employer. Therefore, "in the interest of justice and fairness" the court fashioned the rule requiring the referee to explain that the claimant is not required to testify and that his testimony could be used to support a determination of ineligibility.

The General Assembly has provided that

[t]he manner in which appeals shall be taken ... and the conduct of hearings and appeals, shall be in accordance with rules of procedure prescribed by the board whether or not such rules conform to common law or statutory rules of evidence and other technical rules of procedure.

43 P.S. § 825. Subject to fundamental due process guarantees, then, the Board is empowered to adopt procedural rules which, though foreign to the strictly adversarial system of the courts, are designed to accomplish the Board's function of ensuring that claims for compensation are resolved in compliance with statutory requirements. Accordingly, the Board has provided that

[i]n any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.

and that

[T]he tribunal shall determine the order in which the evidence shall be presented in all hearings. Within the discretion of the tribunal, the parties shall be permitted to present all evidence and testimony which they believe is necessary to establish their rights.

34 Pa.Code § 101.21(a), (b).

These regulations make it clear that the Board, and the referee as agent for the Board, are to remain impartial as between the parties in the production of evidence. At the same time, it is necessary to ensure that a sufficient record is made to ascertain that a proper determination has been made. In the present context, we find it highly significant that "the tribunal shall determine the order in which the evidence shall be presented." In the strictly adversarial court proceeding, the party assigned the burden of proof proceeds first and must produce sufficient evidence to make a prima facie case. The failure to meet that burden relieves the opposing party of any obligation to respond in order to win judgment. The same result cannot hold, however, where the tribunal may alter the order of presentation. In such a situation, the assignment of the burden of proof to one or the other party can only be understood as an indication of the quantum of evidence required to sustain a result in that party's favor. The question of the sufficiency of the evidence to meet the burden must be examined against the complete record. ¹ The effect of the claimant's testimony remains the same whether presented before or after the employer's evidence.

Additionally, it is not true, as the court below apparently assumed, that a claimant (or employer) may refuse to respond to questions in pursuit of a strategy based on the opponent's failure to produce sufficient evidence to meet his assigned burden. We observe that the Unemployment Compensation Law even limits the invocation of the Fifth Amendment privilege against self-incrimination as a basis for...