OPINION BY Judge COHN JUBELIRER.
Mark A. Hackler (Claimant) petitions for review of an Order of the Unemployment Compensation Board of Review (Board) that affirmed the Unemployment Compensation (UC) Referee's (Referee) Decision finding him ineligible for benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Claimant worked as a mechanic at Marlin's Auto Center (Employer) and was separated from his employment on June 21, 2010. (Referee's Decision/Order at 1.) Claimant applied for UC benefits and submitted separation materials to the UC Service Center indicating that he worked to the best of his ability, but was discharged for unsatisfactory work performance without any warning. (Claimant Questionnaire, R. Item 2.) Employer also submitted materials to the UC Service Center confirming that it discharged Claimant for unsatisfactory work performance, but asserting that Claimant received daily warnings. (Employer Questionnaire, R. Item 4.) The UC Service Center found Claimant ineligible for benefits under Section 402(e) of the Law because it found that Claimant received numerous warnings and did not work to the best of his ability. (Notice of Determination, R. Item 5.) Claimant appealed, and a hearing was scheduled before a Referee.
At the hearing, Claimant and Roberta Waltersdorff, co-owner of Employer, appeared pro se and submitted testimony. Employer testified that Claimant was fired because of customer complaints about his work performance and an irregularity in Claimant's application of a state inspection sticker on Claimant's vehicle. Claimant seemed confused at the hearing, but attempted to refute Employer's statements. The Referee found that Claimant committed willful misconduct and affirmed
(Board's Decision and Order at 1-2.) With regard to Claimant's allegation that he was denied due process at the hearing, the Board stated that although "the Referee may have been short with" him, Claimant had an opportunity to present his case and was in no way prevented from offering evidence. (Board's Decision and Order at 3.) Claimant now petitions this Court for review.
On appeal, Claimant argues that the Referee denied him "due process" at the hearing, which essentially challenges whether the Referee conducted the hearing in accordance with the applicable regulation at 34 Pa.Code § 101.21. Alternatively, Claimant argues that the evidence was insufficient to support the Board's finding that he committed willful misconduct. We first address whether the Referee conducted a full and fair hearing consistent with the requirements of 34 Pa.Code § 101.21.
The Board argues that the Referee conducted the hearing consistently with the requirements of Section 101.21 because the Referee "apprise[d Claimant] of his rights to be represented by counsel, to present testimony and evidence and to cross-examine witnesses." (Board's Br. at 7-8.) 34 Pa.Code § 101.21 provides as follows:
Id. (emphasis added). In interpreting this regulation, the courts have held that, in addition to advising pro se parties of their rights and aiding them in questioning witnesses, referees should reasonably assist pro se parties to elicit facts that are probative for their case. Bennett v. Unemployment Compensation Board of Review, 66 Pa.Cmwlth. 455, 445 A.2d 258, 259-60 (1982). In Bennett, this Court instructed that:
Id. (internal citation omitted) (emphasis in original). While the referee "need not advise a party on evidentiary questions or on specific points of law," the referee "must act reasonably in assisting in the development of the necessary facts." Id. at 260 (first emphasis added); see also, Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 611-12, 427 A.2d 631, 643 (1981) (plurality opinion) (stating that
In determining whether the referee has given a pro se claimant reasonable assistance at an evidentiary hearing, the courts consider the referee's approach in questioning the parties. Our Supreme Court, in Ceja, addressed the issue of "the manner in which the hearing was conducted." Id. at 590, 427 A.2d at 632. In Ceja, "the referee's conduct of the hearing fell far short of protecting the rights of the unrepresented claimant" because the referee interrupted the claimant when she attempted to object to hearsay evidence offered by the employer. Id. at 613-14, 427 A.2d at 644.
Another component of a referee's reasonable compliance with the regulatory obligation to assist unrepresented parties is guiding the parties to bring out facts of which the referee knows or should know. For example, the claimant in Bennett, a hotel bartender, testified that she experienced sexual harassment on the job. Bennett, 445 A.2d at 260 n. 6. Documentation in the record corroborated her testimony. Id. However, the referee "did not ask [the pro se claimant] questions sufficient to enable her to emphasize the factual aspects of her contentions," although doing so might have enabled the claimant to show "a necessitous and compelling cause for her voluntary termination of her employment." Id. at 260. This Court found that the referee "should have more thoroughly and reasonably extracted testimony on these points in the interests of fairness."
Similarly, in Tate v. Unemployment Compensation Board of Review, 83 Pa. Cmwlth. 291, 477 A.2d 54, 55 (1984), this Court found that there was no "full and fair hearing" where the referee did not assist the pro se claimant to meet her burden to show that impending homelessness was the compelling reason why she left her job. Id. In Tate, the claimant was living in a campground tent as winter approached. Id. Her testimony suggested that she would have become homeless if she had not moved away to rejoin her husband, who had accepted a job in a distant town. Id. However, "the referee. . . failed to ask [the claimant] important questions concerning the reasons for her termination of her employment . . . which were suggested by her testimony." Id. at 56. Although the prospect of homelessness might have supplied a "compelling economic reason[]" for the claimant to leave her job, "the referee asked no more questions about this issue." Id. at 55. Accordingly, this Court in Tate remanded the case to the Board for further proceedings. Id. at 57.
In this case, the evidentiary hearing was conducted in a manner similar to those found deficient in Bennett, Ceja, and Tate. Like the referees in Bennett and Tate, who did not assist the claimants to bring out favorable information in the record, here the Referee did not question Claimant on issues that the Referee knew or should have known Claimant wanted to pursue. For example, Claimant raised several issues in his Petition to Appeal, a document that the Referee placed into evidence. (Hr'g Tr. at 4, R. Item 9.) Specifically, in the attachment to Claimant's Petition to Appeal, Claimant stated that he experienced verbal abuse on the job, affirmed that he always did honest work, and denied that he received "any type of warning." (Claimant's Petition for Appeal at 2, R. Item 6.) However, this information was never presented at the hearing, and the Referee did not elicit this information from Claimant through the very strict question-and-answer format the Referee employed during Claimant's testimony. (Hr'g Tr. at 9-11.) Additionally, as in Tate, the Referee here bypassed "important questions . . . which were suggested by . . . testimony." Tate, 477 A.2d at 56. For instance, the Referee did not ask Claimant about his initial attempt to deny willful misconduct, (Hr'g Tr. at 3), or about his version of what occurred at his place of employment. Instead, the Referee constrained Claimant's testimony, asking Claimant specific questions which did not allow for open-ended answers. This manner of proceeding did not elicit significant testimony regarding issues set out in Claimant's Petition to Appeal or those about which Claimant tried to present testimony during other parts of the hearing. Claimant did not have an opportunity to speak, unconstrained by the Referee's questions, until the end of the hearing after the testimony had closed. At that point, Claimant tried to present his side of what occurred but, because the testimony was closed, the Referee did not permit Claimant to set forth his side of the case. This falls short of the standard expressed in Section 101.21 and affirmed by this Court in Tate and Bennett.
Additionally, as in Ceja, the Referee interrupted Claimant's questioning of Employer during cross-examination with regard to the inspection incident and prevented him from completing that line of questioning. The following exchange took place:
(Hr'g Tr. at 8-9 (emphasis added).) The record suggests that the Referee anticipated the effect of his abrupt manner in conducting the hearing. At the outset, the Referee stated that "[a]ny questions I ask. . . are not meant to chill, prevent, preclude, substitute for or impair you for the direct relevant testimony." (Hr'g Tr. at 3.) Yet, although the transcript indicates that the Referee began the hearing with a lengthy discussion of rights and procedures, (Hr'g Tr. at 1), and paused often in the course of the hearing to ask whether the parties understood, had questions, or had anything to add, the Referee intervened and distracted Claimant's train of thought nearly every time Claimant was invited to speak. Just as in Ceja, the many interruptions deprived Claimant of the process he was due under 34 Pa.Code § 101.21.
The record also establishes that after the Referee explained the rights of the parties to testify, to introduce evidence, and to cross-examine witnesses, and after he expounded on the complex legal burden of proof in meticulous detail, (Hr'g Tr. at 1-3), Claimant indicated to the Referee that he did not understand; however, the Referee quickly glossed over Claimant's befuddlement and cut Claimant's testimony off twice when Claimant tried to refute the charge of willful misconduct:
(Hr'g Tr. at 3-4 (emphasis added).) These interruptions are the first two of no less than ten points in the transcript where the Referee interrupted Claimant and deferred
While we appreciate the heavy caseload referees are faced with in this economic climate and the resulting need for referees to expedite hearings, referees must nonetheless comply with the legal requirement of 34 Pa.Code § 101.21 by assisting pro se claimants to focus on the issues and testimony that will be relevant to their eligibility for benefits. In this case, we must conclude that the Claimant was prejudiced by the Referee's failure to conduct the hearing in accordance with the requirements of 34 Pa.Code § 101.21. The Referee gave credence to Employer's account of the vehicle inspection incident, which we note was not included in Employer's separation materials as a reason for discharge, while neglecting to follow up on Claimant's attempts during the hearing to present an alternate version of the events. The Board found that "[t]he claimant was terminated because of customer complaints and because he was jeopardizing the employer's state inspection license." (Board Op. at 2.) However, the Referee not only did not assist Claimant, but Claimant's attempts to offer contrary evidence were stifled. The Board failed to perceive this irregularity and, for that reason, we conclude that the Board erred in affirming the Referee's Decision and finding that the Referee did not violate Claimant's right to a fair hearing under 34 Pa.Code § 101.21.
Accordingly, we must reverse the Order of the Board and remand for a new hearing.
Jurisdiction relinquished.