The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilberto Torres-Bobe, :
Petitioner :
: No. 1648 C.D. 2014
v. :
: Argued: September 14, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY
JUDGE McCULLOUGH FILED: October 8, 2015
Wilberto Torres-Bobe (Claimant) petitions for review of the August
18, 2014 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision and held that Claimant is ineligible for benefits under
section 402(e) of the Unemployment Compensation Law (Law)1 because his
discharge was due to willful misconduct. Claimant argues that the Board erred or
abused its discretion in interpreting the regulation at 34 Pa. Code §101.128 to
conclude that compelling reasons existed to allow a witness to testify by telephone.
We affirm.
Claimant worked for American Tire & Wheel (Employer) from April 10,
2008, to January 27, 2014, at a final hourly rate of $12.85. Employer terminated
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
Claimant’s employment for conduct violating Employer’s rules against harassment.
The local job center determined that Claimant was eligible for benefits, and Employer
appealed.
Prior to the first hearing, Employer sent an email to the Lancaster
referee’s office requesting permission for an Ohio-based employee and two other
potential witnesses to participate by telephone. (Record Item 8, #R 7.) The office
responded by email stating that the referee would grant a telephone hearing and
requested the names and phone numbers of the participants. Id. Employer provided
the names and telephone numbers of Anthony Milano and Charles (Chad) Peyton. 2
Notice of the April 15, 2014 hearing, mailed April 1, 2014, stated that Milano and
Peyton would be testifying by telephone. (Record Item 9, #R 2-3.)
At the first hearing, Milano identified himself and stated that he was
Employer’s Human Relations and payroll manager and was calling from
Reynoldsburg, Ohio. Peyton identified himself and stated that he was a contractor
calling from a worksite in York. Milano clarified that Peyton was employed by a
third-party vendor that repairs Employer’s equipment. (Notes of Testimony (N.T.)
4/15/14 at 3-4.)
Claimant stated that he did not doubt the identity of either witness.
However, Claimant objected to allowing Peyton to testify by telephone if Peyton was
within 50 miles of the hearing site in York. Milano responded that Peyton was a
third-party testifying on Employer’s behalf and Employer did not want to interfere
with another company’s ability to conduct business. Referee Foulke, to whom the
case was initially assigned, overruled Claimant’s objection and granted Employer’s
2
A handwritten notation of that information suggests that the names and telephone numbers
were provided by telephone rather than email. Id.
2
request. (Id. at 5-6.) Shortly thereafter, the hearing was continued due to Employer’s
request for a file; the second scheduled hearing also was continued because Claimant
did not receive notice, which had been sent to an incorrect address.
The matter was reassigned to Referee Zorach, who held a hearing on
June 2, 2014. Kevin Hassett, Employer’s division manager, appeared in person, and
Milano and Peyton participated by telephone. Claimant again objected to Peyton’s
telephone testimony, questioning whether the type of compelling reason
contemplated by 34 Pa. Code §101.128 was demonstrated. Milano responded that
Peyton was a third party, employed by another company, and that Employer wanted
to mitigate the impact that Peyton’s testimony would have on his employer’s
business. The referee stated that his office has broad discretion to allow participation
by telephone and that he would follow Referee Foulke’s previous ruling. (N.T.
6/2/14 at 4-5.)
Peyton testified that on January 14, 2014, he was on a service call at
Employer’s York location. Peyton said that he was working on Employer’s tire line
when Claimant approached him and said that Peyton was not doing the work
correctly and that Claimant could have done it much faster. According to Peyton,
Claimant walked away and began making profane remarks directed at Peyton and his
helper. Specifically, Claimant said “What the f--- are you looking at, bitch?” Peyton
replied “Excuse me?” Claimant repeated the question and added “You can suck my -
---.” That was the end of the exchange. Peyton said that he had previously done
work for Employer through his employer, Total Maintenance Solution (TMS), but
had never met Claimant. He also stated that he did not use foul language during the
encounter. (Id. at 6-7, 11.)
3
Peyton testified that he complained to his boss, and both men discussed
the incident with Hassett, Employer’s York division manager. At Hassett’s request,
they sent a written report of the incident to Employer in which they identified
Claimant as an individual with a ponytail and tattoos. (N.T. 6/2/14 at 8-11; Ex. E-4.)
The email from TMS’s owner stated in part that “this type of behavior would not be
tolerated by my employees nor will I subject them to this type of behavior. . . . I hope
this matter does not have a reflection on our future relationship.” (Ex. E-4.)
On cross-examination, Claimant asked how far TMS was from
Employer’s location in York, but the referee sustained Employer’s objection to the
question as not relevant. (N.T. 6/2/14 at 11-12.)
Hassett testified that he received the report of the incident from TMS’s
owner. He explained that Employer relies on TMS to repair its machines and that a
refusal by TMS to come to the York location would be detrimental to Employer’s
business. Hassett stated that he informed his supervisor and Human Relations
personnel of the incident and then asked for and received written documentation of
the exchange from TMS. Hassett said that it was important to document the conduct
because Employer had received prior complaints against Claimant regarding this type
of sexual harassment. (Id. at 12-15.)
Hassett testified that Employer’s employee handbook sets forth
Employer’s zero tolerance policy against sexual harassment. Hassett stated that his
supervisor and Human Relations personnel determined that Claimant’s comments
violated that policy. Hassett added that Employer’s handbook requires employees
who experience harassment to report that conduct to their immediate supervisors.
Hassett noted that while Claimant disputed Peyton’s claims, Claimant never
4
complained to Employer’s management and, in any event, he should not have
responded with that type of language. (Id. at 15-16, 22.)
Claimant testified as follows. On the day in question he was working
the line with his partner and another employee. A man working on the line asked for
Claimant’s opinion on how to fix it. Claimant told him it was not his job, and the
man responded, “Well get the f--- out of here. Go back to your f----- line . . . .” The
two men started arguing, but Claimant never cursed. All he said to Peyton was that if
Peyton wanted to talk about this, Claimant got off work at 3:30 and they could
discuss it outside. Claimant specifically denied using the language described by
Peyton or any other obscene language. (Id. at 17-18.)
Claimant also offered the testimony of Roberto Vazquez. Vazquez
testified that he was employed by Employer on January 14, 2014, and was present
when Peyton was fixing the machine. Vazquez said he heard arguments between the
men, including “Go back to your line. Go to your helpers. Do your F- job over there
. . . .” He also heard Claimant tell Peyton that he finished work at 3:30 and that “they
could talk about it outside.” Vazquez testified that he heard Peyton use the “F word”
and did not hear Claimant use any obscene language. (Id. at 20-21.)
The referee noted that Claimant had objected to allowing Peyton to
testify by telephone. The referee stated that the witness was a mechanic for one of
Employer’s vendors and that Employer made the request so as not to inconvenience
the mechanic’s employment. The referee found that the request was inherently
reasonable and concluded that Claimant offered no valid reason for denying the
witness permission to testify by telephone. As to the merits, the referee credited
Peyton’s testimony and specifically found that Claimant approached Peyton and
5
directed obscenities at him. The referee concluded that Claimant engaged in willful
misconduct rendering him ineligible for benefits under section 402(e) of the Law.
Claimant appealed to the Board, arguing that the referee erred and
violated Claimant’s due process rights by allowing Peyton to testify by telephone,
absent evidence that Peyton was more than 50 miles from the hearing site or any
other facts establishing that he was reasonably unavailable, as required by 34 Pa.
Code §101.28. The Board affirmed the referee’s decision and adopted the referee’s
findings and conclusions. The Board added that the regulations permit a witness to
testify by telephone due to compelling employment reasons regardless of the
witness’s distance from the hearing location. The Board further stated that
Employer’s witness, a mechanic for another company, established this compelling
employment reason and determined that Claimant’s objection did not constitute
grounds to conclude otherwise.
On appeal to this Court,3 Claimant argues that the Board erred in
concluding that Employer established the compelling reason required under 34 Pa.
Code §101.28 to allow a witness to testify by telephone.
The Board’s regulations explicitly state that in-person testimony is
normally preferable to testimony by telephone and that testimony by telephone may
be received only if specifically authorized by the regulations. 34 Pa. Code §101.127.
In relevant part, the regulation at 34 Pa. Code §101.128 (scheduling of telephone
testimony) provides as follows:
3
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, or whether findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
6
(a) The tribunal may schedule, on its own motion,
testimony by telephone of a party or witness when it
appears from the record that the party or witness is located
at least 50 miles from the location at which the tribunal will
conduct the hearing, without regard to State boundaries.
(b) The tribunal may schedule testimony by telephone of a
party or witness, at the request of one or more parties, when
one of the following applies:
(1) The parties consent to the receipt of testimony by
telephone.
(2) The party or witness is reasonably unable to testify
in person due to a compelling employment, transportation,
or health reason, or other compelling problem.
(c) Only a party or witness scheduled to testify by
telephone, or identified prior to the taking of testimony . . .
may testify by telephone, and the testimony of each other
party or witness shall be received in person.
(d) The tribunal will promptly rule on a request that
testimony be taken by telephone after a reasonable attempt
has been made to inform the parties of the request, the basis
for the request, the regulations under which telephone
testimony can be taken, and the right of a party to object.
The basis for the request, the position of the parties, if
known, and the ruling will be documented on the record.
34 Pa. Code §101.128 (emphasis added).
A party objecting to the taking of testimony by telephone must set forth
the reasons for the objection and communicate them to the tribunal before the taking
of testimony. 34 Pa. Code §101.129. The tribunal must rule promptly on the
objections after a reasonable attempt to obtain the position of the other party. Id. A
party may pursue an objection to telephone testimony at the hearing. If the objection
is sustained, the hearing will proceed in accordance with applicable regulations.
Notably, the regulations require a tribunal to permit parties a reasonable opportunity
to question witnesses testifying by telephone for the purpose of verifying their
identity. 34 Pa. Code §101.131.
7
Although Claimant phrases the argument several different ways, the
ultimate issue on appeal is whether Peyton’s status as an employee of a third-party
company that serviced Employer’s equipment and Employer’s stated concern for
maintaining that business relationship established that Peyton was “reasonably unable
to testify in person due to a compelling employment . . . reason, or other compelling
problem” as contemplated by 34 Pa. Code §101.128.
The question of what constitutes a compelling reason to allow testimony
by telephone in an unemployment proceeding has not been specifically addressed by
statute, regulation, or case law. Claimant argues that the Court should be guided by
interpretations of “good cause” or “necessitous and compelling reason” for voluntary
quit under section 402(b) of the Law, 43 P.S. §802(b), which require circumstances
producing “pressure . . . that is both real and substantial.” Taylor v. Unemployment
Compensation Board of Review, 378 A.2d 829, 832-33 (Pa. 1997). Claimant also
points to analysis of the phrase “compelling reason” in Pilon v. Pilon, 492 A.2d 59,
60 (Pa. Super. 1985), distinguishing “good reasons” from “compelling reasons” in a
decision addressing the burden a party bears in a custody case.4
Claimant argues that mere inconvenience is an insufficient basis to allow
testimony by telephone under §101.128. Claimant maintains that in order to be a
“compelling reason” rendering a witness reasonably unable to testify, circumstances
must involve a real and substantial problem sufficient to overcome the
4
Claimant also cites DeSimone v. Unemployment Compensation Board of Review, (Pa.
Cmwlth., No. 1804 C.D. 2008, filed March 3, 2009), slip op. at 7, an unreported opinion, as holding
that the denial of the claimant’s request for a telephone hearing was not error or denial of due
process where the claimant lived thirty-nine miles from the hearing site and acknowledged he could
take public transportation. However, in summarizing this decision, Claimant omits the court’s
observation that the claimant conceded that he could take public transportation but he “felt it was
not worth it.”
8
Commonwealth’s stated policy of preferring testimony in person. Claimant observes
that in this case there is no evidence demonstrating that the witness was unavailable
or that the witness or his employer had a compelling employment problem warranting
a telephone hearing. Rather, according to Claimant, the record reflects only a desire
by Employer to maintain good will with another business.
Claimant also argues that permitting Peyton to testify by telephone was
an abuse of discretion and a denial of his due process right to a fair hearing. More
specifically, Claimant complains that he was denied an opportunity to cross-examine
Peyton in person and that he could not confirm whether the witness was testifying
from his own independent recollection or reading from a prepared writing. Finally,
assuming that Peyton’s telephone testimony must be stricken, Claimant further
contends that the record does not contain substantial evidence to support a
determination of willful misconduct.
The Board responds that the safeguards contained in the Board’s
regulations address nearly all of Claimant’s concerns. Specifically, the regulation at
34 Pa. Code §101.131 permits a party to question an opposing party’s identity and
provides punishment for falsification. In this case, Claimant was given an
opportunity to question the identity of the witnesses testifying by telephone, and his
counsel confirmed he had no doubt about their identity. The regulations prohibit
prompting or directing testimony and testifying from documents not in the record. Id.
The Board further notes that in unemployment cases, the Board is the ultimate
factfinder and arbiter of witness credibility. Because the Board typically reviews
9
only transcripts of testimony, the observation of witness demeanor is irrelevant to its
determinations.5
Further, the Board emphasizes that this Court “must defer to the Board’s
interpretation of its own regulation unless it is clearly erroneous.” McKnight v.
Unemployment Compensation Board of Review, 9 A.3d 946, 949 (Pa. Cmwlth. 2014).
The Board notes that “an abuse of discretion is not merely an error of judgement . . .
[but] occurs if, in reaching a conclusion, the law is overridden or misapplied or
judgment exercised is manifestly unreasonable or is the result of partiality, prejudice,
bias, or ill will.” Henderson v. Unemployment Compensation Board of Review, 77
A.3d 699, 713 (Pa. Cmwlth. 2013).
In considering the parties’ arguments, we are mindful of the informal
nature of unemployment compensation proceedings. Our Supreme Court emphasized
this point in Harkness v. Unemployment Compensation Board of Review, 920 A.2d
162 (Pa. 2007), when it held that a non-lawyer who represents an employer in an
unemployment proceeding is not engaging in the practice of law. In so deciding, the
Supreme Court reasoned that an unemployment proceeding is largely routine and
primarily focused on creating a factual basis, or record, by which the referee can
render a decision. Id. at 168. The court explained in Harkness that the Law is
remedial in nature; its purpose is to provide economic security to persons who are
5
The Board also cites an unreported opinion, Morris v. Unemployment Compensation Board
of Review, (Pa. Cmwlth., No. 2383 C.D. 2010, filed June 14, 2011), in which we held that “it is
within the discretion of the referee to determine whether a proffered reason is compelling when
considering a request to schedule testimony by telephone.” In Morris, we upheld the denial of a
request made on the day of the hearing. The Board asserts that in this case the referee similarly
acted within his discretion by permitting Peyton to testify based on Employer’s rationale that he is a
third party and Employer’s desire to mitigate the impact on its vendor’s business.
10
unemployed through no fault of their own; and it is designed to allow such persons to
obtain funds at the earliest point that is administratively feasible. Id.
To this end, the unemployment compensation system must
operate quickly, simply, and efficiently. The proceedings
are ‘by design, brief and informal in nature.’ Thus, the
claims for benefits are not intended to be intensely litigated.
Unemployment compensation proceedings are not trials.
The rules of evidence are not mandated; there is no pre-
hearing discovery; the parties have no right to a jury trial;
indeed there is no requirement that the referee be a lawyer.
Also, and importantly, there are only minimal amounts of
money in controversy. Issues arising in these matters are
generally questions of fact not requiring complex legal
analysis. Requiring employers to be represented by counsel
will not only undermine the informal, speedy and low cost
nature of these proceedings, it may dissuade many
employers from defending claims for benefits leading to the
possibility of an unwarranted drain on the system.
Id. (citations omitted). Accordingly, the court concluded that a finding that non-
lawyer representatives were engaging in the practice of law by participating in
unemployment proceedings “would impose an unnecessary burden on the public.”
Id. at 168-69.
The regulation at 34 Pa. Code §101.128 states that the witness must be
“reasonably unable to testify in person due to a compelling employment,
transportation, or health reason, or other compelling problem.” In accord with
Harkness, in interpreting this regulation, we likewise consider the informal nature of
unemployment proceedings, the goal of efficient decision-making, and the potential
burden our ruling might impose on the public.
We first conclude that the use of the word “reasonably” in the phrase
“reasonably unable” suggests that the “compelling problem” need not be as
compelling as circumstances justifying a voluntary quit or supporting a child custody
11
decision. More important, we conclude that as a matter of policy, neither a claimant
nor an employer should have to choose between presenting critical evidence or
suffering a detrimental impact to his employment or business.
Claimant argues that Employer could have subpoenaed Peyton’s
testimony and that Employer offered no evidence that it asked Peyton to testify or
discussed the possibility of Peyton’s live testimony with Peyton’s employer.
Claimant also complains that the compelling reason asserted in this case was asserted
by Employer and not by a witness.
However, Employer bore the burden of proving willful misconduct at the
hearing. Other than Claimant, Peyton was the only person who could provide first
hand testimony concerning the only incident at issue and the material facts in dispute;
therefore, his testimony was critical to Employer’s case. Yet Peyton’s only interest in
this matter was as a potential witness employed by a third-party company. Through
testimony and documentary evidence, Employer demonstrated that its relationship
with Peyton’s employer had already been strained by Claimant’s misconduct,
Employer depended upon Peyton’s employer to repair its equipment, and Employer’s
business would suffer if Peyton’s employer refused to return to Employer’s York
location. When these facts are considered in light of the informal nature of
unemployment proceedings and the Supreme Court’s admonition against imposing an
unnecessary burden on the public, we agree that Employer’s concern, that Peyton’s
live testimony and the corresponding imposition on Peyton’s employer would have a
detrimental impact on Employer’s business, constituted a compelling problem
rendering Peyton reasonably unable to testify in person for purposes of §101.128.
Under these circumstances, the Board’s determination was neither clearly erroneous
nor manifestly unreasonable. McKnight; Henderson.
12
Accordingly, we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilberto Torres-Bobe, :
Petitioner :
: No. 1648 C.D. 2014
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 8th day of October, 2015, the order of the
Unemployment Compensation Board of Review, dated August 18, 2014, is
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge