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KENNETH R. DEHUS v. COMMONWEALTH PENNSYLVANIA (08/03/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 3, 1988.

KENNETH R. DEHUS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of Kenneth R. Dehus, No. B-256361.

COUNSEL

Randal E. McCamey, for petitioner.

Bernadette Paul, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 118 Pa. Commw. Page 345]

This is an appeal by Kenneth R. Dehus (Claimant), from the Order of the Unemployment Compensation Board of Review (Board), dated March 5, 1987, which affirmed the decision of the Referee denying unemployment compensation benefits due to willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Claimant was employed as a Vice-President and plant coordinator for Dura-Corp (Employer) from September 1, 1984, until his discharge on May 12, 1986.*fn2

[ 118 Pa. Commw. Page 346]

He had been hired to coordinate the opening of operations at the Employer's new plant. During the month of April, 1986, Claimant frequently was absent from work. Claimant was discharged as a result of his alleged interference with the work of certain German technicians.

The Office of Employment Security (OES) issued a notice of determination denying Claimant compensation benefits due to willful misconduct. Claimant appealed from that determination, and the Referee affirmed. Claimant appealed to the Board which affirmed the Referee's decision, and Claimant timely filed an appeal with this Court.

Claimant maintains that the Board erred by denying his request for a remand for the taking of additional testimony. He also maintains that certain findings of the Board were not supported by substantial evidence.

Our scope of review is well established. We are limited to affirming the Board's decision unless there was an error of law, a party's constitutional rights were violated, or if the necessary findings of fact are not supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

[ 118 Pa. Commw. Page 347]

We first address Claimant's procedural contention that the Board abused its discretion by failing to remand the case for the taking of additional testimony. Claimant alleges that the matter should have been remanded because he had no notice prior to the Referee's hearing of the specific charges of willful misconduct about which Employer testified and based upon which the Referee denied compensation; that the lack of notice prevented him from preparing a defense; and that, consequently, his due process rights were violated.

A review of the procedural history corroborates Claimant's allegations, but it also reveals a crucial defect in his plaint. Claimant received a Notice of Determination from the OES advising him that his application was denied on the basis of willful misconduct, Section 402(d) of the Law. Under the "Findings of Fact" section, the Claimant was advised that the reasons for his separation from employment were considered willful misconduct because "of the actions he performed which were not in the employers [sic] best interests." Claimant was represented by counsel at the hearing before the Referee. Claimant neither objected to the lack of notice in the Notice of Determination, nor requested a continuance. At no time during the hearing did Claimant state that the lack of notice prejudiced him, either by preventing him from issuing subpoenas to witnesses or by preparing a defense.*fn3

[ 118 Pa. Commw. Page 348]

Claimant's attorney first raised the issue of lack of notice in a letter which he sent to the Referee dated December 17, 1986, two days after the December 15 hearing. (December 17, 1986, was also the mailing date of the Referee's decision. Presumably the two missives crossed each other in the mail.) In this letter Claimant's attorney mentioned that Claimant had not received notice of the pertinent issues, and he stated that Claimant was willing to provide further testimony, but he did not request that further testimony be taken.*fn4 Subsequently, Claimant's attorney filed an appeal with the Board and requested that the Board take additional evidence.*fn5 The

[ 118 Pa. Commw. Page 349]

Board denied the request for a remand, holding that Claimant had received proper notice, and affirmed the Referee's decision.

Although Claimant frames the failure to remand issue in terms of abuse of discretion by the Board, Claimant's contention properly should be analyzed in terms of error of law. 34 Pa. Code § 101.104(c) controls whether the taking of new testimony is permitted or required. This section states as follows:

Under section 504 of the Unemployment Compensation Law (42 P.S. § 824), the Board may affirm, modify or reverse the decision of the referee on the basis of the evidence previously submitted in the case, or the Board, in its discretion, may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision. The further appeal shall be allowed and additional evidence required in any of the following circumstances:

(2) It appears that there may have been a denial of a fair hearing under the rules.

34 Pa. Code § 101.104(c). Because Claimant alleged that he was denied his right to a fair hearing, the provisions of § 101.104(c)(2) were applicable. The question then becomes not whether the Board abused its discretion by failing to remand for additional testimony to be taken, but whether the Board committed an error of law. We find that the Board did not err when it refused to remand the matter for the taking of additional testimony because Claimant failed to preserve the due process issue.

It may seem obvious that an unemployment compensation claimant waives review of an issue by failing

[ 118 Pa. Commw. Page 350]

    to raise it before the Referee when he has an opportunity to do so; yet, somewhat surprisingly, there is a paucity of case law which addresses this specific issue. Of course, the applicability of the doctrine of waiver to cases before the Board is well-established. The leading case is Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981). In that case the Supreme Court extended to unemployment compensation proceedings the concept of waiver, which it previously had applied to civil matters in Dilliplaine v. Lehigh Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

The particular question in Wing was whether a legal theory was waived when it was presented for the first time on appeal before the Commonwealth Court. The facts in Wing are distinguishable because in the instant case Claimant did raise the due process issue during proceedings before the Board. Nevertheless, the Supreme Court's rationale, that an issue must be raised at the earliest possible opportunity, is dispositive.

[T]he administrative law tribunal must be given the opportunity to correct its errors as early as possible; diligent preparation and effective advocacy before the tribunal must be encouraged by requiring the parties to develop complete records and advance all legal theories; and the finality of the lower tribunals' determinations must not be eroded by treating each determination as part of a sequence of piecemeal adjudications.

Id. at 117, 436 A.2d at 181.

Claimant had the opportunity to object to the lack of notice while the proceedings before the Referee were in progress. Claimant knew even before he entered the hearing room that he had not received notice of the charges against which he was required to defend. It was

[ 118 Pa. Commw. Page 351]

    incumbent upon Claimant to advise the Referee of his procedural objections at that time.*fn6

Having been served with no notice of the charges against him, it is unquestionable that Claimant did not receive a full hearing.*fn7 Nevertheless, we have no choice

[ 118 Pa. Commw. Page 352]

    but to find that Claimant waived review of his contention that he was denied due process. It follows as a logical consequence of the waiver that the Board did not err when it refused to remand for the taking of additional testimony.*fn8

Next Claimant contends that certain of the Board's findings were not supported by substantial evidence. The Board made the following findings of fact:*fn9

1. Claimant was last employed as a vice-president by Dura-Corp. from September 1984, at a final annual rate of $25,999 and his last day of work was May 12, 1986.

2. The claimant was absent from work on numerous occasions during April 1986 as a result of his dissatisfaction with the employer.

3. The employer had purchased machinery for its operations from foreign manufacturers.

4. As a result of this purchase, the employer required the assistance of technicians in order that a test run of this equipment might be properly conducted.

5. The test run was very critical to the efficient operation of the employer's business.

6. Scheduling of the test run was critical because the necessary technicians had a demanding work schedule.

7. The employer installed said machinery and scheduled a test run for it on May 9, 1986, and May 10, 1986.

[ 118 Pa. Commw. Page 3538]

. The claimant was aware or should have been aware of the test run to be conducted on May 9, 1986, and May 10, 1986, and of its importance to the employer.

9. The claimant was assigned by the employer to pick up the German technicians at Greater Pittsburgh Airport and take them to the employer's business location for the test.

10. The claimant picked up the German technicians on May 9, 1986, or May 10, 1986, at the airport and did not take them to the employer's business premises, but instead entertained them over the weekend.

11. On May 12, 1986, the claimant took the two German technicians to the employer's premises.

12. A technician from California had arrived and because the technicians from Germany were not there on May 10, 1986, and May 11, 1986, the technician could not do the test run.

13. On May 11, 1986, this technician returned to California.

14. The claimant knowingly distracted the two German technicians from the employer's business premises at the time material herein in order to interrupt the employer's business operation.

15. The claimant's services were terminated by the employer for intentional disruption of the employer's business operations.

16. As a result of the claimant's activities, the employer suffered a loss of production time and commissions.

17. The claimant has not shown good cause for his actions.

[ 118 Pa. Commw. Page 354]

Claimant argues that attendance by the California technician was not necessary for performance of the test, and that the German technicians could have performed the test on Monday. Claimant thus concludes that even if he was responsible for the test not being performed over the weekend (which he denies), such conduct would not have resulted in a loss of production time and commissions to Employer. Claimant also contends that there was no testimony that Claimant knew that he was assigned the responsibility of taking the German technicians to the plant over the weekend, and that absent such knowledge his failure to do so was not willful.

Contrary to Claimant's contentions, testimony was introduced into evidence which supports these findings. Claimant's contentions must fail because essentially he merely is attacking the credibility of this evidence. The Board remains the final arbiter of a witness' credibility, and the Board's decision to believe one witness over another is consequently conclusive. E.T. Systems Corporation v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 230, 504 A.2d 992 (1986).

Having thus disposed of Claimant's allegations of error, we affirm the decision of the Board.

Order

Now, August 3, 1988, the order of the Unemployment Compensation Board of Review, No. B-256361, dated March 5, 1987, is Affirmed.

Senior Judge Kalish dissents.

Disposition

Affirmed.


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