[J-1-2021] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
CAITLIN QUIGLEY, : No. 20 EAP 2020 : Appellee : Appeal from the Order of : Commonwealth Court entered on : January 28, 2020 at No. 1449 CD v. : 2017 vacating/remanding the Order : of the Unemployment Compensation : Board of Review entered on August UNEMPLOYMENT COMPENSATION : 8, 2017 at No. B-17-09-G-2764. BOARD OF REVIEW, : : ARGUED: March 9, 2021 Appellant :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: November 17, 2021 I fully join the majority opinion, and particularly its careful reading of the
Unemployment Compensation Law, 43 P.S. §§751-919.10 (UC Law), and related
regulations promulgated by the Department of Labor and Industry (Department) and the
Unemployment Compensation Board of Review (Board). I write separately to respectfully
buttress the majority’s analysis in light of the distinctive standard of review applicable to
administrative matters.
Unlike typical judicial appellate review for an abuse of discretion, our standard for
reviewing appeals of administrative decisions draws from the statutory mandates of
Section 704 of the Administrative Agency Law (Agency Law), which annunciates the
parameters of an appellate court’s final disposition. Specifically, “[w]e must affirm [the
Board’s] adjudication unless we determine that: it violates the appellant’s constitution[al]
rights; it is not in accordance with law; it was reached in violation of applicable administrative procedure; or any fact necessary to the decision is not supported by
substantial evidence.” U.S. Steel Corp. v. UCBR, 858 A.2d 91, 99 (Pa. 2004) (emphasis
added), citing 2 Pa.C.S. §704; see also, e.g., Diehl v. UCBR, 57 A.3d 1209, 1216 (Pa.
2012) (“[W]hen reviewing unemployment compensation cases, an appellate court must
consider whether the findings of fact are supported by substantial evidence and whether
there was a violation of the constitution or agency procedure or an error of law.”) (citation
and internal quotation omitted).
The violation of an “applicable administrative procedure” relates not only to an
agency’s particular enabling statutes and regulations, but also to traditional principles of
procedural due process. These are further codified in Section 504 of the Agency Law,
which requires reasonable notice, a fair opportunity to be heard on the merits of the
appeal, and a full and complete record. See J.F. v. Dep’t of Human Servs., 245 A.3d 658,
668-69, 673 (Pa. 2021), citing 2 Pa.C.S. §§504, 704.
The majority and concurring opinions have described in depth the manner in which
the Department’s and Board’s actions have made the requisite meaningful notice and an
opportunity to be heard inaccessible to this claimant. See Majority Opinion, slip op. at
34-35; Concurring Opinion, slip op. at 1-5 (Wecht, J.). Additionally, the Department, with
its investigatory powers and duties to require the reports and records it deems necessary,
see 43 P.S. §761, bears some responsibility for ensuring the record is complete.
Through the initial claim review process, the Department directs what information
is necessary to support a claimant’s eligibility. Here, because Claimant completed the
Department’s questionnaire specific to sideline business claimants, the Department
informed her, via email and on the questionnaire itself, that the additional information
necessary to support her eligibility was the Schedule C from her 2016 tax return, which
she provided immediately. See Claimant Questionnaire, 4/11/17, at 2; UC Service Center
[J-1-2021] [MO: Todd, J.] - 2 Email, 4/11/17. The Department also required, under penalty of fraud, Claimant’s dates
of service at her last full-time employer, her responses to several yes or no questions
regarding amounts of her time and income related to her sideline business, and her social
security number, for use by the Department to verify her information. See Claimant
Questionnaire, 4/11/17, at 1-3. Notably, in accord with its own regulations, the
Department “will not issue a decision invalidating a claim until the claimant has been given
an opportunity to refute any alleged facts or circumstances which are being considered
as a basis for invalidating his claim.” 34 Pa. Code §65.61. And, under the UC Law, upon
the Department’s determination of whether or not a claim is valid, “[n]otice of such
determination need not be given to the claimant if the claim is determined valid,
but if the claim is determined invalid, notice shall be given by the department in
writing to the claimant stating that the claim is invalid and the reason therefor.” 43
P.S. §821(c)(2) (emphasis added). Claimant provided all of the information the
Department deemed necessary to support her eligibility; presumably the Department
performed its verification, no challenge was raised to the accuracy of the information
Claimant provided, and because the claim was determined valid, claimant had no notice
of any defects in her application that would warrant the later disqualification of her
eligibility.
The Department then certified the contents of the claim file, upon which the referee
and Board based their review. Notably, the Board’s own regulations require the referee
to provide unrepresented parties with “every assistance compatible with the impartial
discharge of its official duties.” 34 Pa. Code §101.21(a). In this case, among the first
annotations at the top of Claimant’s claim record is an entry dated April 21, 2017, stating,
“[Claimant] IS REQUESTING CONTACT BE MADE BY EMAIL; PHONE WILL BE
DISCONNECTED FOR APPROX 3 WEEKS[.]” Claim Record at 1. Claimant’s
[J-1-2021] [MO: Todd, J.] - 3 continuance request was made on May 1 via email, to the email address provided in the
Notice of Hearing as an appropriate means of contact. See Notice of Hearing, 4/26/17 at
3; Email to Referee, 4/30/17. The referee called Claimant’s disconnected phone number
and left a message indicating the continuance would be denied without further
information. In my view, a brief glance at the claim record should have alerted the referee
that a telephonic response to Claimant’s request would not be received prior to the
scheduled hearing, and failed to provide minimal assistance compatible with the impartial
discharge of the tribunal’s duties.
Lastly, the Board believes it was required to disqualify Claimant because, as it
claims, the only competent evidence of record was Claimant’s checkmark in the “Yes”
box on her sideline business questionnaire, to answer the question “Do you own all
aspects of this business?” — while the remainder of the information in the claims file
constituted “uncorroborated hearsay.” Appellant’s Brief at 36-37; Claimant Questionnaire
at 1. As the majority observes, the Department’s tribunals are entitled to rely on
information contained in the Department’s own records. Majority Opinion, slip op. at 32-
33 n.12, citing 34 Pa. Code §101.51. I additionally observe the Department may do so
as a result of its power and duty to collect and verify the essential information. In this
regard, it is difficult to see how the information provided by Claimant was
“uncorroborated.” See Vann v.
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[J-1-2021] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
CAITLIN QUIGLEY, : No. 20 EAP 2020 : Appellee : Appeal from the Order of : Commonwealth Court entered on : January 28, 2020 at No. 1449 CD v. : 2017 vacating/remanding the Order : of the Unemployment Compensation : Board of Review entered on August UNEMPLOYMENT COMPENSATION : 8, 2017 at No. B-17-09-G-2764. BOARD OF REVIEW, : : ARGUED: March 9, 2021 Appellant :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: November 17, 2021 I fully join the majority opinion, and particularly its careful reading of the
Unemployment Compensation Law, 43 P.S. §§751-919.10 (UC Law), and related
regulations promulgated by the Department of Labor and Industry (Department) and the
Unemployment Compensation Board of Review (Board). I write separately to respectfully
buttress the majority’s analysis in light of the distinctive standard of review applicable to
administrative matters.
Unlike typical judicial appellate review for an abuse of discretion, our standard for
reviewing appeals of administrative decisions draws from the statutory mandates of
Section 704 of the Administrative Agency Law (Agency Law), which annunciates the
parameters of an appellate court’s final disposition. Specifically, “[w]e must affirm [the
Board’s] adjudication unless we determine that: it violates the appellant’s constitution[al]
rights; it is not in accordance with law; it was reached in violation of applicable administrative procedure; or any fact necessary to the decision is not supported by
substantial evidence.” U.S. Steel Corp. v. UCBR, 858 A.2d 91, 99 (Pa. 2004) (emphasis
added), citing 2 Pa.C.S. §704; see also, e.g., Diehl v. UCBR, 57 A.3d 1209, 1216 (Pa.
2012) (“[W]hen reviewing unemployment compensation cases, an appellate court must
consider whether the findings of fact are supported by substantial evidence and whether
there was a violation of the constitution or agency procedure or an error of law.”) (citation
and internal quotation omitted).
The violation of an “applicable administrative procedure” relates not only to an
agency’s particular enabling statutes and regulations, but also to traditional principles of
procedural due process. These are further codified in Section 504 of the Agency Law,
which requires reasonable notice, a fair opportunity to be heard on the merits of the
appeal, and a full and complete record. See J.F. v. Dep’t of Human Servs., 245 A.3d 658,
668-69, 673 (Pa. 2021), citing 2 Pa.C.S. §§504, 704.
The majority and concurring opinions have described in depth the manner in which
the Department’s and Board’s actions have made the requisite meaningful notice and an
opportunity to be heard inaccessible to this claimant. See Majority Opinion, slip op. at
34-35; Concurring Opinion, slip op. at 1-5 (Wecht, J.). Additionally, the Department, with
its investigatory powers and duties to require the reports and records it deems necessary,
see 43 P.S. §761, bears some responsibility for ensuring the record is complete.
Through the initial claim review process, the Department directs what information
is necessary to support a claimant’s eligibility. Here, because Claimant completed the
Department’s questionnaire specific to sideline business claimants, the Department
informed her, via email and on the questionnaire itself, that the additional information
necessary to support her eligibility was the Schedule C from her 2016 tax return, which
she provided immediately. See Claimant Questionnaire, 4/11/17, at 2; UC Service Center
[J-1-2021] [MO: Todd, J.] - 2 Email, 4/11/17. The Department also required, under penalty of fraud, Claimant’s dates
of service at her last full-time employer, her responses to several yes or no questions
regarding amounts of her time and income related to her sideline business, and her social
security number, for use by the Department to verify her information. See Claimant
Questionnaire, 4/11/17, at 1-3. Notably, in accord with its own regulations, the
Department “will not issue a decision invalidating a claim until the claimant has been given
an opportunity to refute any alleged facts or circumstances which are being considered
as a basis for invalidating his claim.” 34 Pa. Code §65.61. And, under the UC Law, upon
the Department’s determination of whether or not a claim is valid, “[n]otice of such
determination need not be given to the claimant if the claim is determined valid,
but if the claim is determined invalid, notice shall be given by the department in
writing to the claimant stating that the claim is invalid and the reason therefor.” 43
P.S. §821(c)(2) (emphasis added). Claimant provided all of the information the
Department deemed necessary to support her eligibility; presumably the Department
performed its verification, no challenge was raised to the accuracy of the information
Claimant provided, and because the claim was determined valid, claimant had no notice
of any defects in her application that would warrant the later disqualification of her
eligibility.
The Department then certified the contents of the claim file, upon which the referee
and Board based their review. Notably, the Board’s own regulations require the referee
to provide unrepresented parties with “every assistance compatible with the impartial
discharge of its official duties.” 34 Pa. Code §101.21(a). In this case, among the first
annotations at the top of Claimant’s claim record is an entry dated April 21, 2017, stating,
“[Claimant] IS REQUESTING CONTACT BE MADE BY EMAIL; PHONE WILL BE
DISCONNECTED FOR APPROX 3 WEEKS[.]” Claim Record at 1. Claimant’s
[J-1-2021] [MO: Todd, J.] - 3 continuance request was made on May 1 via email, to the email address provided in the
Notice of Hearing as an appropriate means of contact. See Notice of Hearing, 4/26/17 at
3; Email to Referee, 4/30/17. The referee called Claimant’s disconnected phone number
and left a message indicating the continuance would be denied without further
information. In my view, a brief glance at the claim record should have alerted the referee
that a telephonic response to Claimant’s request would not be received prior to the
scheduled hearing, and failed to provide minimal assistance compatible with the impartial
discharge of the tribunal’s duties.
Lastly, the Board believes it was required to disqualify Claimant because, as it
claims, the only competent evidence of record was Claimant’s checkmark in the “Yes”
box on her sideline business questionnaire, to answer the question “Do you own all
aspects of this business?” — while the remainder of the information in the claims file
constituted “uncorroborated hearsay.” Appellant’s Brief at 36-37; Claimant Questionnaire
at 1. As the majority observes, the Department’s tribunals are entitled to rely on
information contained in the Department’s own records. Majority Opinion, slip op. at 32-
33 n.12, citing 34 Pa. Code §101.51. I additionally observe the Department may do so
as a result of its power and duty to collect and verify the essential information. In this
regard, it is difficult to see how the information provided by Claimant was
“uncorroborated.” See Vann v. UCBR, 494 A.2d 1081, 1086 (Pa. 1985) (hearsay
evidence admitted without objection may support a finding of fact if corroborated). As a
result, absent any additional evidence offered by the Department to the contrary, I do not
view the Board’s sole finding of fact justifying its decision to disqualify Claimant — i.e.,
“[t]he claimant owned and operated an independent business[,]” Board Decision, 8/8/17,
at 1 — as supported by substantial evidence.
[J-1-2021] [MO: Todd, J.] - 4 Accordingly, for the foregoing reasons, as well as those articulated by the majority,
I conclude the Board reached its decision based upon violations of applicable
administrative procedure, and the decision was not supported by substantial evidence.
Though the dissenting opinions authored by my learned colleagues may appear to offer
a facially reasonable alternate reading of the statute and regulations, in my respectful
view, such an interpretation does not account for due process in cases where the claimant
(experiencing the sudden burden of economic insecurity and its attendant obstacles, such
as, plausibly, the loss of phone service) and the tribunal responsible for providing due
process (benefitting from the expertise of a complement of attorneys, see Appellant’s
Brief at 11, 21) are ships passing in the night, given the claimant’s communication of her
limitations at every step.1 In such matters, the Board’s duty to protect the Unemployment
Compensation Trust Fund from improper claims and unintended purposes is not
effectuated through discretionary decisions that evade due process, which has the
foreseeable consequence of diverting those reserves from their intended recipients by
denying qualifying claims and prolonging litigation.
1 To the extent any inference about the timeliness of Claimant’s continuance request may
be drawn from the fact the request was made on April 30, 2017, i.e., nine days before the scheduled May 9, 2019 hearing, I note the record also indicates the Notice of Hearing was mailed out to Claimant on April 26, 2017, four days prior to her request; it therefore appears she made her continuance request immediately following receipt of the Notice. See Notice of Hearing, 4/26/17, at 1.
[J-1-2021] [MO: Todd, J.] - 5