Hall v. Unemployment Compensation Board of Review

584 A.2d 1097, 137 Pa. Commw. 56, 1990 Pa. Commw. LEXIS 692
CourtCommonwealth Court of Pennsylvania
DecidedDecember 28, 1990
DocketNo. 773 C.D. 1990
StatusPublished
Cited by1 cases

This text of 584 A.2d 1097 (Hall v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. Unemployment Compensation Board of Review, 584 A.2d 1097, 137 Pa. Commw. 56, 1990 Pa. Commw. LEXIS 692 (Pa. Ct. App. 1990).

Opinion

BARBIERI, Senior Judge.

Edward C. Hall (Claimant) seeks review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee’s denial of benefits pursuant to Section 402(e) of the Unemployment Compensation Law [58]*58(Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).1 We affirm.

Claimant was employed as a fabric worker for the Defense Logistics Agency (Employer) in Philadelphia for several years until October 5, 1989 when he was discharged. Thereafter, he sought unemployment compensation benefits. The Office of Employment Security (OES) issued a determination denying Claimant benefits on the basis of Section 402(e) of the Law, 43 P.S. § 802(e).

Claimant timely appealed the OES’s determination. After a two-day hearing, the referee concluded that Employer sustained its burden of proving willful misconduct under Section 402(e) of the Law, 43 P.S. § 802(e), so as to warrant a disallowance of benefits.2 The referee based his conclusion on the following findings of fact, which, after reviewing the record, we find supported by substantial evidence:

2. On July 14, 1989, claimant walked over to a table in the break room where Jonathan Smith and others were seated and said to Mr. Smith, ‘I’m going to get you.’
3. Mr. Smith excused himself from the table, went over to claimant and an argument ensued, during which time claimant took out a knife.
4. No blows were exchanged and no physical contact was made. Eventually others stopped the argument and Mr. Smith and claimant, Edward Hall, went their separate ways.
5. Claimant was discharged as a result of the incident.

6. Claimant did not have good cause for his actions. Findings of Fact Nos. 2-6.

Claimant appealed the referee’s decision to the Board. After reviewing the record, the Board adopted the referee’s findings and affirmed his decision.

[59]*59Claimant now seeks our review,3 presenting the sole issue of whether he was afforded a fair hearing by the referee. Claimant contends that the hearing before the referee was conducted in a manner manifesting bias and violated all concepts of basic fairness. In support, Claimant asserts that the referee exhibited impatience and improperly caused the record to be closed on the first day of hearing in the middle of Claimant’s cross-examination of Employer’s primary witness because he had other hearings scheduled. Claimant also asserts that the referee committed harmful error when he granted Claimant’s request for sequestration of Employer’s witnesses, but subsequently permitted Employer’s primary witness to be recalled as a rebuttal witness after hearing the testimony of Claimant’s only witness.

Relevant to our disposition are the following excerpts extracted from the record:

ACL: My name is Robbins [sic] I was going to represent Mr. Hall [Claimant]. He did not show up?
QR (referee): You are an attorney?
ACL: Yes sir.
QR: No he did not show up. He has a witness here----
QR: ... I have got to proceed with the hearing. It was scheduled for ten thirty. It is now quarter to eleven. I have another hearing at eleven o’clock. So I do not want to delay this anymore than I have to____
ACL: I would like to make it part of the record Mr. Referee that the inclement weather maybe Mr. Hall is not on time because of that [sic].
[60]*60QR: Inclement weather alright. I see it is slight covering of the sidewalk with snow____
QR: ... Now sir do not delay me any longer. I want to proceed with the hearing. You have made your point on the record____
ACL: Mr. Referee I move for the sequestration of witnesses.
AEL (Employer’s counsel): On what grounds ...
ACL: Obvious grounds ... You have got people that are working together that may be in collusion____

Hearing Transcript, pp. 1-2. At this juncture, the referee granted Claimant’s request for sequestration of the witnesses intended to be called by Employer, Charles Bowser and Lenora Johnson. Id., p. 2. In accordance therewith, Johnson was sent to a waiting room while Bowser testified. Id., p. 2.

Immediately upon completion of Bowser’s direct testimony, which testimony supports Findings of Fact Nos. 2-4, Claimant entered the hearing room, at which time the referee stated:

It is five minutes to eleven. Claimant has just entered the hearing room. And I am sorry but I have another hearing at eleven____ I do not presume that this hearing can be concluded in five minutes, [sic] Since [sic] we have another employer witness and we have the claimant and the claimant’s witness____ and I presume there is going to be cross examination____ Perhaps we will allow cross examination and I will close the record for today. And I will reschedule this matter some time in the future. And we will continue the matter at that time.
Alright. Any cross examination of Mr. Bowser?

[61]*61Hearing Transcript, p. 5. Cross-examination of Bowser continued until some time past eleven o’clock when the referee announced that he was going to close the record and proceed with the hearing at a later date. Id., p. 8.

Several weeks later, the hearing was reconvened. In response to the referee’s inquiry as to whether Claimant’s counsel wished to further cross-examine Bowser, Claimant’s counsel responded, “No further cross, Mr. Referee.” Hearing Transcript, p. 8.

Thereafter, Employer’s second witness, Johnson, was called to testify, at which time the following colloquy transpired:

QR: So there is no other employer witness. So I do not see any reason to sequester anyone at this point.
ACL: Well Mr. Bowser if he is [sic] through I think he ought to be sequestered.
QR: He is through. I do not think there is any reason to sequester him.
ACL: Nobody is going to recall him then fine.
QR: Is he going to be recalled Sir?
AEL: No.

Hearing Transcript, p. 9. Bowser then remained in the hearing room.

Johnson’s responses to preliminary questions posed to her revealed that she had not personally witnessed the incident leading to Claimant’s discharge, whereupon the following exchange took place:

QR: And I do not see that she can offer any testimony and I see no necessity to cross examine her. So that apparently ends the employer’s case [sic] is that right sir?
AEL: Yes.

Hearing Transcript, p. 9. Consequently, only one witness for Employer, Bowser, ultimately offered testimony in support of Employer and against Claimant.

Claimant’s sole witness, Diane Harris, was then called to testify. Harris testified that she witnessed the incident in question.

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Bluebook (online)
584 A.2d 1097, 137 Pa. Commw. 56, 1990 Pa. Commw. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-unemployment-compensation-board-of-review-pacommwct-1990.