The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gary H. Powell, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent : No. 1704 C.D. 2014
ORDER
NOW, November 6, 2015, having considered respondent’s application
for reargument and petitioner’s response in opposition thereto, the application is
denied to the extent it seeks reargument, but reconsideration is granted. The
opinion filed September 17, 2015 is withdrawn. The attached opinion is entered.
BY THE COURT:
DAN PELLEGRINI,
President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gary H. Powell, :
Petitioner :
:
v. : No. 1704 C.D. 2014
: Submitted: March 20, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION BY JUDGE BROBSON FILED: November 6, 2015
Gary H. Powell (Claimant) petitions, pro se, for review of an order of
the Unemployment Compensation Board of Review (Board), which affirmed an
Unemployment Compensation Referee’s (Referee) decision denying Claimant
unemployment compensation benefits under Section 402(b) of the Unemployment
Compensation Law (Law).1 For the reasons set forth below, we vacate and
remand.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(b). Section 402(b) of the Law provides, in part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature. “[W]hether a claimant had cause of
a necessitous and compelling nature for leaving work is a question of law subject to this Court’s
review.” Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985).
Claimant applied for unemployment compensation benefits after he
voluntarily resigned his position as a laborer and maintenance man with
Joe Krentzman & Son Inc. (Employer)2 on September 24, 2013. The Altoona UC
Service Center (Service Center) found that Claimant was ineligible for benefits
under Section 402(b) of the Law, pertaining to voluntary termination without cause
of a necessitous and compelling nature. Claimant appealed, claiming that he had
necessitous and compelling cause to quit, because Michael Krentzman, President
of the company, forcibly assaulted him.
Referee Brian Parr conducted a hearing on December 5, 2013.
(Certified Record (C.R.), Item Nos. 7, 12.) Claimant introduced Don Bailey as his
representative for the hearing. Mr. Bailey, from the beginning, admitted to being
suspended from practicing law in this Commonwealth for five years by the
Pennsylvania Supreme Court, but he stated that he was present at the hearing as an
advocate working pro bono. Neither Referee Parr nor Employer objected to
Mr. Bailey representing Claimant.
Mr. Bailey first presented Referee Parr with an issue concerning
subpoenas. He alleged that, on December 2, 2013, Claimant submitted requests for
six witnesses to be subpoenaed for the hearing but the subpoenas were not
delivered to him until December 4th, one day before the hearing. Referee Parr
agreed that the timeframe was short and offered to continue the hearing to a later
date, if needed.
2
Employer filed an application to intervene in this matter, which the Court granted by
order dated November 20, 2014.
2
Dale Watkins, Chief Financial Officer and Corporate Secretary for
Employer, testified that he instructed security personnel on September 24, 2013,
that if Claimant appeared on the premises after work hours not to admit him and to
instruct him that he was to report during regular work hours. At this point in the
hearing, Referee Parr decided that there was a factual issue to the testimony that
required witnesses to be subpoenaed. The parties discussed the relevance behind
the subpoenas, and the Referee continued the hearing for a later date.
On December 9, 2013, Schaun D. Henry, Esquire, entered his
appearance as attorney for Employer. (C.R., Item No. 13.) In his letter entering
his appearance, Mr. Henry argued that Mr. Bailey improperly represented Claimant
at the December 5th hearing, because Rule 217(j)(4)(vii) of the Pennsylvania Rules
of Disciplinary Enforcement (Disciplinary Rules) prohibit the representation. The
relevant part provides that “a formerly admitted attorney is specifically prohibited
from . . . appearing on behalf of a client in any hearing or proceeding before any
judicial officer, arbitrator, mediator, court, public agency, referee, magistrate,
hearing officer or any other adjudicative person or body.” Pa. R.D.E. 217(j)(4)(vii)
(emphasis added). Rule 102(a) of the Disciplinary Rules, Pa. R.D.E. 102(a),
defines a “formerly admitted attorney” as a “disbarred, suspended, administratively
suspended, retired or inactive attorney.” (Emphasis added.) Mr. Henry objected to
any evidence presented at the December 5th hearing on the basis that Mr. Bailey
was prohibited from appearing before Referee Parr to represent Claimant, and he
further argued that some of the subpoena requests were irrelevant.
A second hearing was scheduled for January 8, 2014, but it was
subsequently continued. (C.R., Item Nos. 15, 18.) By letter dated
February 6, 2014, Referee Susan Hess informed Mr. Bailey that Rule 217 of the
3
Disciplinary Rules prohibits a suspended attorney from appearing on behalf of a
client in any hearing or proceeding before a referee, and thus, he cannot represent
Claimant. (C.R., Item No. 22.) Referee Hess informed Claimant that he had thirty
days to retain another lawyer.
On March 26, 2014, Referee Hess conducted a second hearing.
(C.R., Item Nos. 24, 30.) In advance of the hearing, Employer sent a subpoena to
the Pennsylvania State Police for an incident report, and Claimant sent a subpoena
to David Parks, seeking to have him testify at the hearing. (C.R., Item Nos. 25, 27,
29.) At the hearing, Claimant introduced Andy Ostrowski as his advocate. After
some questioning, Referee Hess determined that Mr. Ostrowski’s attorney’s license
was suspended. Referee Hess refused to allow Mr. Ostrowski to represent
Claimant, but she allowed him to sit through the proceeding as an observer.
Claimant continued the hearing pro se. Referee Hess admitted the statements
made at the first hearing as part of the second hearing.
Referee Hess essentially found Claimant’s story that Michael
Krentzman, the president of the company, forcibly put his hand on Claimant’s
chest was not credible. Thus, Claimant failed to establish a necessitous and
compelling reason for leaving work. As such, Referee Hess denied Claimant
unemployment compensation benefits.
Claimant appealed to the Board, and the Board affirmed the Referee’s
order. The Board made the following findings of fact:
1. For the purposes of this appeal, the claimant was
last employed by Joe Krentzman & Sons, Inc.,
from September 1, 1995, until
September 24, 2013, at an hourly rate of $12.60.
2. The claimant’s final position was full-time laborer
and maintenance person.
4
3. The claimant had previously acted as temporary
non-ferrous department foreman.
4. On September 24, 2013, the company president
directed the claimant to temporarily replace the
non-ferrous department foreman, who left work
that day due to a health issue.
5. The president described the claimant’s foreman
duties, which included overseeing the repair of a
machine.
6. The president asked if he could count on the
claimant because the machine repair was a serious
issue and he needed someone to take charge of the
repair and the eight non-ferrous department
employees.
7. The claimant responded that he was the only
person that the president could count on, and when
the president said that he could not count on the
claimant at times due to his poor performance, the
claimant told the president that he did not work for
him, he only worked for the president’s father.
8. The claimant also told the president that he did not
have to listen to the president’s brother, who is the
chief financial officer, he only worked for the
president’s father, who owned the company, and
he wanted to speak with the president’s father
immediately.
9. When the claimant started walking toward the
main office, the president said that they could both
speak with the president’s father on the claimant’s
break at 10:00 a.m.
10. The claimant turned back toward the main
warehouse area, claimed that the president
assaulted him, and asked nearby employees for a
cell phone so that he could call 9-1-1.
11. The president did not touch the claimant and,
specifically, did not put a hand on the claimant’s
chest to block him from leaving.
12. At some point during this interaction with the
president, the claimant said that he needed to travel
5
to Lewistown Paper for supplies, and the president
said that he would run the errand over lunch
because he needed the claimant to be on duty in
the non-ferrous department.
13. When none of the employees would give the
claimant access to a cell phone, at 9:14 a.m., the
claimant walked out without punching out, walked
across the street to his car in the parking lot, and
drove away.
14. The claimant subsequently reported the incident to
the Pennsylvania State Police, and a trooper
responded to the employer’s warehouse to follow
up on the complaint, but no charges were filed
against the employer.
15. The claimant did not report to work on
September 25, 2013, or thereafter, and did not
contact the president or his immediate supervisor,
the company’s chief financial officer who was also
in charge of human resources issues.
16. The chief financial officer informed the
employer’s security personnel that the claimant
was not permitted to enter the workplace after
hours; this rule applied to all former employees.
17. The employer’s management never instructed
security or informed the claimant that he was not
permitted to return to the workplace during
working hours.
(C.R., Item No. 36.) The Board also explained that Referee Hess properly
prohibited the suspended attorneys from representing Claimant in the proceeding
before her and noted that Claimant was given proper notice of the change of
representation and sufficient time to retain different counsel. The Board also
resolved the conflicts in testimony in favor of Employer, placing weight on
Employer’s witnesses’ credible first-hand testimony and Claimant’s lack of
attempts to contact Employer after the altercation. Finding that Claimant did not
demonstrate credibility and offered no support to show a hostile work
6
environment, the Board determined that Claimant failed to establish necessitous
and compelling cause for voluntarily quitting his employment. Claimant petitioned
the Board for reconsideration of its decision, which the Board denied. (C.R., Item
Nos. 37, 39.) Claimant now petitions this Court for review.
On appeal,3 Claimant essentially makes the following arguments:
(1) the Board erred in applying the Disciplinary Rules to prohibit the suspended
attorneys from representing him at the hearings; (2) the Board violated Claimant’s
due process rights by improperly prohibiting Mr. Bailey and Mr. Ostrowski from
representing Claimant; (3) the Board’s factual finding that the president did not put
a hand on Claimant’s chest to block him from leaving is not supported by
substantial evidence; and (4) the Board erred as a matter of law in concluding that
Claimant did not have a necessitous and compelling cause to quit his job.
First, we address Claimant’s argument that the Board erred in
applying the Disciplinary Rules to prohibit the suspended attorneys from
representing him at the hearings. Claimant asserts that Section 214 of the Law,4 as
confirmed by our Supreme Court’s decision in Harkness v. Unemployment
Compensation Board of Review, 920 A.2d 162 (Pa. 2007), permits non-attorney
representatives to represent individuals during a referee hearing, and Mr. Bailey
and Mr. Ostrowski were acting as representatives, not as attorneys, for his
hearings. Thus, Claimant contends that the Board erred in precluding the
3
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
Added by the Act of June 15, 2005, P.L. 8, 43 P.S. § 774.
7
suspended attorneys from representing him. The Board argues that
notwithstanding Section 214 of the Law, Mr. Bailey and Mr. Ostrowski were
prohibited pursuant to the Disciplinary Rules. The Board argues that Mr. Bailey
and Mr. Ostrowski are not the standard “non-attorneys” to which the case law
applies. (Respondent’s Br. at p. 9.) The Board emphasizes that Mr. Bailey and
Mr. Ostrowski are suspended attorneys, not non-attorneys. (Id.)
Rule 201(a) of the Disciplinary Rules provides that the Supreme Court
and the Disciplinary Board of the Supreme Court (Disciplinary Board) have
exclusive disciplinary jurisdiction over “[a]ny attorney admitted to practice law in
this Commonwealth,” “[a]ny formerly admitted attorney . . . with respect to acts
subsequent thereto which amount to the practice of law or constitute the violation
of the Disciplinary Rules, these rules or rules of the [Disciplinary] Board adopted
pursuant hereto,” and “[a]ny attorney not admitted in this Commonwealth who
practices law or renders or offers to render any legal services in this
Commonwealth.” Pa. R.D.E. 201(a). Disciplinary Rule 217(d)(1) provides, in
part, that “[t]he formerly admitted attorney, after entry of the disbarment,
suspension, administrative suspension or transfer to inactive status order, shall not .
. . engage as attorney for another in any new case or legal matter of any nature.”
Pa. R.D.E. 217(d)(1) (emphasis added). Furthermore, pursuant to Disciplinary
Rule 217(j)(4), a formerly admitted attorney is specifically prohibited from
“representing himself or herself as a lawyer or person of similar status,” “rendering
legal consultation or advice to a client,” and “appearing on behalf of a client in any
hearing or proceeding or before any judicial officer, arbitrator, mediator, court,
public agency, referee, magistrate, hearing officer or any other adjudicative person
or body.” Pa. R.D.E. 217(j)(4) (emphasis added). Disciplinary Rule 102(a)
8
defines a “formerly admitted attorney” as “[a] disbarred, suspended,
administratively suspended, retired or inactive attorney.” Pa. R.D.E. 102(a)
(emphasis added).
Section 214 of the Unemployment Compensation Law, however,
provides that “[a]ny party in any proceeding under this act before the department, a
referee or the board may be represented by an attorney or other representative.”
(Emphasis added.) Moreover, our Supreme Court in Harkness held that
non-attorneys may represent an individual before a referee hearing, because such
activity does not constitute the practice of law. See Harkness, 920 A.2d at 169.
In Harkness, the Supreme Court reasoned that a non-attorney or lay
representative can represent individuals at a referee hearing because (1) an
unemployment compensation proceeding is largely routine and primarily focused
on creating a factual basis, or record, by which the referee can render a decision
and (2) the nature of the proceeding is remedial and the purpose is to provide
economic security to unemployed individuals who are unemployed through no
fault of their own, thus the proceedings are “by design, brief and informal.” Id. at
166, 168. Thus, the Supreme Court concluded that a non-attorney representing a
party before a referee hearing is not engaging in the practice of law.5 Id. at 169. It
5
In Harkness, the claimant was discharged from her employment for using vulgar
language towards a customer. Harkness, 920 A.2d at 164. At the referee hearing, the employer
was represented by an employee of a tax company. Id. The employer’s representative was not
an attorney. Id. After being found ineligible for benefits by the referee, the claimant appealed to
the Board. Id. at 165. The Board affirmed, noting that the Law permits parties to be represented
by legal or non-legal advisors. Id. Upon appeal, this Court reversed the Board’s decision,
concluding that it was error for the referee to permit the employer to be represented by a
non-attorney. Id. The employer appealed to the Supreme Court, which reversed this Court’s
order. Id. at 171.
9
is important to note here that the main issue behind Harkness was whether
individuals representing claimants in unemployment compensation proceedings
were illegally engaging in the practice of law. The Supreme Court concluded they
were not. Id. at 166.
Here, we are not confronted with the question of whether representing
a party before an unemployment compensation referee constitutes the practice of
law, but rather, we are presented with the question of whether the Board acted
properly when it prohibited the suspended attorneys from representing Claimant at
the hearing. Pursuant to Section 214 of the Law, Claimant had a statutory right to
be represented by his designee at an unemployment compensation hearing. Our
Supreme Court has held that the representative need not be an attorney, because
representation before an unemployment referee does not constitute the practice of
law. See Harkness. Under Section 214 of the Law, then, Claimant was entitled to
designate the suspended attorneys as his representative.
Rather than applying Section 214 of the Law and the Supreme Court’s
decision in Harkness interpreting it, the Board applied a Disciplinary Rule.
Enforcement of the Disciplinary Rules, however, falls within the “exclusive”
jurisdiction of the Supreme Court and the Disciplinary Board. Pa. R.D.E. 201(a).
We note at least one instance where the Pennsylvania Supreme Court, responding
to a petition of the Disciplinary Board, held a suspended attorney in contempt for
willful violation of Disciplinary Rule 217(j) by representing claimants and
employers in unemployment compensation matters before the Board. In the
Matter of David Louis Bargeron, 130 DB 2005 (Pa. July 27, 2011) (Bargeron).
The question in this case, however, is not whether the suspended
attorneys—Mr. Bailey and Mr. Ostrowski—should be sanctioned as a matter of
10
discipline by the Pennsylvania Supreme Court for violating Disciplinary Rule
217(j). The question is whether the Board or referee may enforce Disciplinary
Rule 217(j) to deprive a claimant of his right to representation of his choice under
Section 214 of the Law, which does not preclude a “suspended attorney” from
serving as a claimant representative. We hold that they cannot. As noted above,
the jurisdiction of the Disciplinary Board and the Supreme Court to prosecute and
enforce the Disciplinary Rules is “exclusive.” Pa. R.D.E. 201(a). As Bargeron
illustrates, both have taken steps to discipline lawyers who violate Rule 217(j) by
representing clients in unemployment compensation matters. Here, the Board
ignored its own governing statute and attempted to step into the shoes of the
Disciplinary Board and the Supreme Court, effectively sanctioning Claimant for
Mr. Ostrowski’s violation of the Disciplinary Rules by denying Claimant
representation at the second hearing.6
Should this situation arise again, it would be more appropriate, and
consistent with both Disciplinary Rule 217(j) and Section 214 of the Law, for the
referee and the Board to advise the suspended attorney that the suspended
attorney’s representation of the claimant would be a violation of Disciplinary Rule
217(j). If the suspended attorney chooses, nonetheless, to continue the
representation, the referee and Board must allow it under Section 214 of the Law,
but they may refer the suspended attorney to the Disciplinary Board for further
6
Referee Parr permitted Mr. Bailey to represent Claimant at the first hearing, because
Employer did not object to the representation until after the first hearing and before the second
hearing. Referee Hess admitted the statements made at the first hearing as part of the second
hearing. Thus, Claimant received the benefit of Mr. Bailey’s representation at the first hearing,
but he was denied Mr. Bailey’s and Mr. Ostrowski’s representation thereafter.
11
action consistent with Bargeron. If the suspended attorney chooses to withdraw,
then the referee and the Board should afford the claimant an opportunity to find
alternative representation.
Accordingly, the order of the Board is vacated, and the matter is
remanded to the Board for a new hearing.
P. KEVIN BROBSON, Judge
Judge McGinley dissents.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gary H. Powell, :
Petitioner :
:
v. : No. 1704 C.D. 2014
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 17th day of September, 2015, the order of the
Unemployment Compensation Board of Review (Board) is hereby VACATED,
and the matter is REMANDED to the Board in accordance with this opinion.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge