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06/12/97 EUGENE P. HAWKINS v. UNEMPLOYMENT

June 12, 1997

EUGENE P. HAWKINS, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appealed From No. B-345771. State Agency Unemployment Compensation Board of Review.

Before: Honorable James Gardner Colins, President Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable James R. Kelley, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Smith

The opinion of the court was delivered by: Smith

OPINION BY JUDGE SMITH

FILED: June 12, 1997

Eugene P. Hawkins (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board) affirming a decision of the referee who denied Claimant benefits pursuant to Section 3 of the Unemployment Compensation Law (Law). *fn1 Claimant argues that his conduct, under the particular circumstances of this case, was not contrary to acceptable standards of behavior and that his conduct would not have an adverse impact upon his ability to perform his job; therefore, unemployment compensation benefits were improperly denied.

The Board argues that Claimant's criminal conviction for welfare fraud conclusively establishes that his conduct was contrary to acceptable standards of behavior and that his conduct adversely impacted upon his ability to perform as a corrections officer. This case was reargued before the Court en banc pursuant to the Court's December 18, 1996 order granting the Board's application for reargument and withdrawing the earlier panel opinion entered in the case.

Claimant worked as a Corrections Officer for the Clearfield County Prison (Employer) for approximately four years until his termination on November 8, 1995. By complaint dated September 25, 1995, Claimant and his wife were charged with welfare fraud under Section 481 of the Public Welfare Code, Act of June 13, 1967, P.L. 31, as amended, 62 P.S. § 481. *fn2 Claimant and his wife signed an application for welfare benefits submitted to the Department of Public Welfare without making required disclosure of the wife's stock ownership or dividend income. Claimant testified that he signed the application with the understanding that his wife would determine how to report income from her stock holdings when she filed the application; the wife apparently neglected to follow through. They were originally charged with a felony violation, but pursuant to a plea agreement, Claimant plead guilty to a misdemeanor of the third degree before a district Justice on November 1, 1995 and immediately paid restitution of $14,696.70. Claimant felt that he had no choice but to enter the plea.

Counsel for Claimant notified Employer of the entry of Claimant's guilty plea, and by resolution dated November 9, 1995, the Clearfield County Prison Board terminated Claimant's employment. The Job Center denied Claimant's application for benefits under the provisions of Section 3 of the Law and Section 402(e), 43 P.S. § 802(e). Upon appeal the referee affirmed the Job Center but modified its decision to deny compensation solely under Section 3 of the Law. Claimant appealed to the Board which affirmed the referee without opinion. *fn3 This Court's scope of review of the Board's decision is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. Croft v. Unemployment Compensation Board of Review, 662 A.2d 24 (Pa. Commw. 1995).

I.

To deny a claimant benefits under Section 3 of the Law, the employer must satisfy a two-prong test enunciated in Unemployment Compensation Board of Review v. Derk, 24 Pa. Commw. 54, 353 A.2d 915 (Pa. Commw. 1976). The employer must establish that the claimant's conduct was contrary to acceptable standards of behavior and that the conduct in question directly reflects upon the claimant's ability to perform his or her assigned duties.

As to the first prong of the Derk test, Claimant concedes that welfare fraud is the type of conduct that is contrary to acceptable standards of behavior. On the other hand, Claimant argues that he should be allowed to explain the actual circumstances of his plea agreement to prove that he is innocent of welfare fraud. *fn4 The Board counters that Claimant's conviction is conclusive proof of his conduct and that the conviction cannot be attacked in this proceeding.

In Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624, cert. denied, 381 U.S. 925, 14 L. Ed. 2d 684, 85 S. Ct. 1561 (1965), the Pennsylvania Supreme Court first adopted the rule that a criminal conviction collaterally estops a defendant from denying his or her acts in a later civil trial. There the Supreme Court overruled prior case law which held that criminal convictions were not admissible in civil cases. The court stated the principle that, once guilt has been established by a Judge or jury, a defendant may not collaterally attack "a major criminal conviction" in a civil case, unless it can be shown that the conviction was obtained by fraud, perjury or by some other sufficient error. The court distinguished this rule from "relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import." Id., 416 Pa. at 499, 206 A.2d at 627. In such situations expediency or convenience, as opposed to guilt, may control the defendant's trial strategy. Id.

The Supreme Court addressed the issue again in Folino v. Young, 523 Pa. 532, 568 A.2d 171 (1990). In Folino the court explained that the rule against collateral attack of criminal convictions applies where the party had adequate incentive to contest the criminal charge and an adequate forum in which to litigate the matter. The potential loss of substantial property or of liberty provides adequate incentive to contest a criminal charge. Id. The court reiterated the sentiment that summary convictions, where the accused is not entitled to a jury trial, are inadmissible in civil cases; however, non-summary convictions are generally admissible and conclusive of the facts upon which they are predicated.

In this case, Claimant had adequate incentive to contest the criminal charge filed against him and an adequate forum in which to litigate the matter. Although Claimant plead guilty to a lesser offense, he faced the potential loss of substantial property and/or liberty in terms of a fine and up to a one-year prison sentence, in addition to the restitution ordered. See the Crimes Code, 18 Pa. C.S. ยงยง 1101, 1104. The fact that Claimant chose to plead guilty to a misdemeanor of the third degree as part of his plea agreement does not change the analysis. Department of Transportation v. Mitchell, 517 Pa. 203, 212, 535 A.2d 581, 585 (1987). The penalty for a third degree misdemeanor is still substantial, and the charge of welfare fraud is a serious one. Had Claimant elected to contest the welfare fraud ...


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