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County of Allegheny Orphans' Court v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

November 13, 2019

County of Allegheny Orphans' Court/ Fifth Judicial District of Pennsylvania, Petitioner
Unemployment Compensation Board of Review, Respondent

          Argued: October 3, 2019




         The County of Allegheny Orphans' Court/Fifth Judicial District of Pennsylvania (Employer) petitions for review from an order of the Unemployment Compensation Board of Review (Board) that declined to find J.B. (Claimant) ineligible for unemployment compensation (UC) benefits under Section 402(e) of the UC Law.[1] Employer discharged Claimant from employment for violating the code of conduct for employees of the Unified Judicial System (UJS). Relevant here, Employer's primary witness, although subpoenaed, did not attend the hearing. After initially closing the record, and without a written request by any party, the referee conducted a second hearing to allow Employer's witness to testify. The Board concluded the referee erred in reopening the record on her own motion. Based on the evidence submitted during the first hearing, the Board determined Employer did not prove willful misconduct.

         Employer argues the Board erred in not considering the testimony it submitted at the second hearing. Employer also contends that, regardless, it met its burden of proof. Because the Board did not err in determining the referee improperly reopened the record under the circumstances, and the record from the first hearing did not connect Claimant's alleged willful misconduct to her work, we affirm.

         I. Background

         Since 1995, Claimant worked for Employer as a clerk of courts, presumably for the Allegheny County Orphans' Court. In that capacity, she was subject to the UJS Code of Conduct (Code), which requires UJS employees to avoid impropriety or the appearance of impropriety and to avoid misuse of influence or resources of the judiciary. See Code, Section VII, Workplace Conduct, B(iv); Reproduced Record (R.R.) at 96a-103a. The Code also placed a duty on UJS employees to disclose when there was a conflict of interest.

         In January 2018, Employer learned Claimant had a relationship with an inmate in the Allegheny County jail (Inmate). In the course of that relationship, she hid Inmate's vehicle, ostensibly used in a crime, and hid the $80, 000 it contained in her home. Claimant did not disclose her relationship with Inmate to her supervisors.

         Employer investigated Claimant's involvement in Inmate's crimes after receiving a criminal complaint listing the charges against her. City of Pittsburgh Detective Joseph A. Lippert, III (Officer), who signed the criminal complaint, investigated the charges against Inmate and filed charges against Claimant for her role in allegedly hiding ill-gotten gains and intimidating witnesses on Inmate's behalf.

         Melinda Sala, Employer's Human Resources Manager (HR Manager) held a meeting with Claimant to discuss her role in Inmate's crimes. During that meeting, Claimant admitted to having a relationship with Inmate and to hiding his vehicle and the $80, 000 it contained in her home. Based on these admissions, Employer suspended Claimant from her employment. Subsequently, Employer terminated Claimant's employment for violations of the Code.

         Claimant applied for UC benefits, which the local service center granted when Employer failed to respond to a questionnaire. Employer appealed, and shortly thereafter, a referee scheduled a hearing.

         Relevant here, Employer subpoenaed Officer to attend the referee's hearing, and to testify regarding Claimant's role in Inmate's crimes.

         At the hearing, Employer presented the testimony of HR Manager. Despite the subpoena, Officer did not appear, and no reason was given for his non-appearance. Nonetheless, Employer did not request a continuance, and the referee held the hearing (First Hearing). Employer attempted to submit a copy of the preliminary hearing transcript from the criminal proceeding involving Inmate. However, Claimant's counsel objected on hearsay grounds, and the referee excluded the transcript on that basis. Employer also submitted a copy of the criminal complaint filed against Claimant, the criminal docket, and a copy of the UJS Code.

         HR Manager testified regarding Claimant's violations of the Code. Specifically, she testified Section IV(A) of the Code prohibits UJS employees from accepting anything of value from a person. Referee's Hr'g, Notes of Testimony (N.T.), 4/18/18, at 9; R.R. at 79a. She noted the strict standards to which UJS employees are held, emphasizing they should not appear to be influenced by others in the course of their official conduct, as by having relationships with and communicating with inmates. HR Manager also testified that Claimant admitted to hiding Inmate's vehicle and his $80, 000.

         Other than answering the referee's basic questions regarding her title and her dates of employment, Claimant declined to testify at the hearing, citing the pending criminal charges against her and the privilege against self-incrimination. She did not submit any other evidence.

         Two days after closing the record at the hearing, the referee contacted Employer and advised that she was reopening the record to hold a second hearing in order to hear Officer's testimony. Employer again subpoenaed Officer to appear.

         At the outset of the second hearing, Claimant's counsel objected to the reopening of the proceedings without a request by any party. The referee responded that she continued the hearing because "Officer was subpoenaed[, ] and he did not appear at the prior hearing." Referee's Hr'g, 5/9/18, N.T. at 2 (Second Hearing). When Claimant's counsel asked the referee about the grounds for reopening, the referee advised that she acted on the advice of her supervisor who works for the Department of Labor and Industry (Department), who she identified as a party to the proceedings. N.T. at 4. She confirmed that "I [referee] reopened it … [a]t the request of my supervisor …." Id.

         The referee reopened the hearing for the sole purpose of receiving Officer's testimony. Over Claimant's objection, Officer testified regarding his investigation of Claimant's conduct as related to Inmate, in particular, his review of 80-plus jail calls between Claimant and Inmate. As much of his testimony was hearsay, the referee admitted little of Officer's testimony. Officer confirmed he could identify the voice on the calls as Claimant's voice because he spoke with her when he executed a search warrant at her home. Thus, the referee limited Officer's testimony to only what he heard Claimant say on the calls.

         Officer testified that when asked by an unknown male to retrieve Inmate's vehicle, which contained a lot of cash, Claimant agreed. She assured Inmate she would hide the vehicle, knowing it contained stolen items. She advised "[Inmate] that she was going to pull every string she had. She was going to reach out to people that she knew within the criminal justice system" which included a judge and his tip staff. N.T. at 12 (Second Hearing). Officer testified he heard Claimant contact Inmate's family, who were victims of his crimes. Officer also testified Claimant stated Inmate's wife "needed to be put in cement shoes and sunk in the river …." Id. at 15. Officer did not complete an investigation of ...

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