“At the appellate level, a party’s failure to include analysis and relevant authority results in waiver.”
How later courts described this case
- “At the appellate level, a party’s failure to include analysis and relevant authority results in waiver.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Tewell, :
:
Petitioner :
:
v. : No. 691 C.D. 2021
: Submitted: December 30, 2021
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE WOJCIK FILED: July 8, 2022
Thomas Tewell (Claimant), pro se, petitions for review of the decision
of the Unemployment Compensation Board of Review (Board) dated April 22, 2021,
which affirmed the decision of the Board’s referee (Referee) denying unemployment
compensation (UC) benefits to Claimant under Section 402(b) of the Unemployment
Compensation Law (Law).1 After careful review, we affirm.
The procedural history of this matter is as follows. The Office of UC
Benefits determined that Claimant was ineligible for UC benefits because he
voluntarily separated from employment without necessitous and compelling cause.
Certified Record (C.R.) at 13-15.2 Claimant appealed the denial, alleging that
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 relevant part, that an employee shall be ineligible
for compensation for any week “[i]n which his unemployment is due to leaving work without cause
of a necessitous and compelling nature. . . .”
2
We cite to the Certified Record using the printed page numbers.
Pennsylvania Transformer Technology, Inc. (Employer) failed to provide viable
personal protective equipment (PPE) per COVID-19 guidelines and created an
unsafe working environment. Id. at 17-22. The Referee provided notice of a hearing
scheduled for January 4, 2021, to consider whether Claimant voluntarily separated
from employment without necessitous and compelling cause in violation of Section
402(b) of the Law, or whether Claimant was discharged from employment for willful
misconduct in violation of Section 402(e) of the Law.3 Id. at 28-31. The Referee
provided notice that the January 4, 2021 hearing was continued and rescheduled for
January 25, 2021, and would be conducted by telephone. Id. at 28-38. Employer
submitted various documents regarding its COVID-19 policies to be considered at
the hearing. Id. at 40-75. A telephone hearing was held before the Referee on
January 25, 2021, at which Claimant appeared and testified, and where Employer
appeared and offered the testimony of four witnesses. Id. at 77-98. The Referee
confirmed that Claimant received the documents submitted by Employer. Id. at 80-
81. The Referee reviewed that the parties had the right to have an attorney or non-
legal advisor present if they chose, present testimony and evidence, question
witnesses, and request an in-person hearing. Both parties testified that they
understood their rights. Id. at 81-82.
The Referee explained that under Section 402(b) of the Law, Claimant
had the burden to prove that his resignation was for necessitous and compelling
reasons. C.R. at 82. The Referee then identified the documents in the file, which
3
Section 402(e) of the Law states, in pertinent part, that an employee shall be ineligible for
compensation for any week “[i]n which his unemployment is due to his discharge or temporary
suspension from work for willful misconduct connected with his work. . . .” 43 P.S. §802(e). After
determining that Claimant resigned voluntarily from employment, the appeal proceeded on Section
402(b) of the Law only, which Claimant did not dispute. Claimant testified that “[i]t was a quit
for a viable reason.” C.R. at 88.
2
were admitted into the record without objection. Id. at 82-85. The Referee explained
how the hearing would proceed, with each party having the opportunity to question
the other party’s witnesses. Id. at 86. Claimant testified that Employer failed to
provide appropriate PPE, and that the lack of appropriate PPE caused him to be “sick
all the time and it just got to be too much.” Id. at 88. Claimant testified that he had
a “compromised respiratory system.” Id. at 89. When the Referee asked Claimant
to provide more specific information about his respiratory issue, Claimant responded
“[t]hat’s none of your concern. That’s between me and my doctor.” Id. The Referee
responded that “if you’re raising it as a reason for why you quit, sir, it would be
relevant for me to know. But, if you don’t want to tell me that’s fine. That’s up to
you.” Id. Claimant testified that he did not inform Employer about the lack of PPE
or about his concerns, stating he “no longer had any talk[s] with the management.”
Id. at 89-90. He further testified that on June 1, 2020, the day he was to return to
work after vacation, he texted Employer’s Production Supervisor, Bob Cook
(Supervisor), that “I probably wouldn’t be back. I was tired of being sick all the
time, and it’s just—it’s not worth the stress.” Id. at 90.
Employer presented testimony from Nick Smith, Employer’s Health
and Safety Manager (Safety Manager), about its efforts to comply with COVID-19
requirements. C.R. at 91-95. Safety Manager testified that as a critical infrastructure
business permitted to remain open, Employer provided masks for employees, face
shields for employees who had difficulty working with masks, hand sanitizer,
enhanced cleaning, and social distancing. Id. at 91-92. The Referee asked Safety
Manager if he was aware of PPE shortages leading up to Claimant’s separation from
employment, as Claimant alleged, to which Safety Manager replied, “[n]o.” Id. at
93. Claimant asked Safety Manager questions about the availability of disinfectant
3
spray and cleaning practices, to which Safety Manager responded. Id. at 94-95.
Claimant and the Referee asked Safety Manager about Employer’s efforts to enforce
employee mask requirements. Safety Manager testified that during the first few
months of the COVID-19 emergency, requirements were a “continuous moving
target” and that Employer “adapted as we learned more information.” Id. at 95.
Safety Manager testified that when employees failed to wear masks as required,
Employer’s Human Resources Manager talked to employees, warned them to
comply, and eventually issued disciplinary suspensions to employees who failed to
comply. Id. at 65-69, 95.
Employer then presented testimony from its Supervisor about the text
message that Claimant sent on June 1, 2020, and Supervisor’s reply on the same
date. C.R. at 96-97. Supervisor testified that Claimant was a good employee and
that Supervisor never had any problems with Claimant’s work. Id. at 96. He testified
that he received a text from Claimant early in the morning on June 1, 2020, and
Claimant agreed that Supervisor could read the text messages at the hearing. Id.
Supervisor testified as follows:
[Claimant] said, “I think I’m about done, Bob.
Throughout this whole ordeal, I have had three masks. I
am tired of being sick. I’m tired of my nose running off
my face. I am tired of asking for a clean mask. I am just
tired.” And then I [(Supervisor)] answered him
[(Claimant)], just to sum it up, that, you know, look me up
when I get into the plant and we’ll talk about it then.
Id. at 97. Supervisor then read his reply to Claimant which stated, “I’ll
[(Supervisor)] look you [(Claimant)] up when I get in so you can tell me what’s
going on. I’m not sure who you’ve been asking for a new mask, but there is always
a box out for anyone who wants to use it.” Id. Employer asked Supervisor if
Claimant’s text message was the first time that he knew that Claimant did not have
4
a mask or was asking for a mask, to which he replied, “[t]o my recollection, yes.”
Id. The Referee asked Claimant if he had any questions for Supervisor, and Claimant
did not. Id. The Referee then asked if Claimant wished to add anything else, and
Claimant replied, “[no], not at this time.” Id. Employer gave a closing statement,
Claimant did not, and the Referee adjourned the hearing. Id. at 97-98.
The Referee then issued a decision dated January 28, 2021, denying
Claimant’s UC benefits. C.R. at 100-04. The Referee made the following findings.
Claimant was last employed by Employer as a full-time electronic finisher from May
29, 2019, to May 28, 2020, Claimant’s last day of work. Id. at 100. Claimant was
off work for a scheduled vacation on May 29, 2020, and was scheduled to return to
work on June 1, 2020. Id. “On the morning of June 1, 2020, [] Claimant sent a text
message to his manager stating, ‘I think I’m about done.’” Id. Claimant’s text
message continued and referenced a lack of masks being provided by Employer and
that Claimant was ill. Id. at 101. Prior to resigning, Claimant had not notified
Employer of any purported lack of PPE equipment or supplies related to COVID-
19. Id. As of Claimant’s last day of work, Employer had masks on hand for
employees, placed hand sanitizer near the time clock, enforced social distancing and
mask wearing for employees, had face shields available for employees who had
difficulties wearing a mask, and had implemented a cleaning protocol at least once
a day. Id. The Referee found that Claimant “voluntarily resigned his employment
on June 1, 2020,” by way of text message, purportedly due to concerns with exposure
to COVID-19 in the workplace, and the lack of PPE. Id. Claimant “did not raise
any such concerns with [] Employer prior to submitting his resignation.” Id.
The Referee concluded that Claimant failed to sustain his burden to
prove he had necessitous and compelling cause for leaving his employment. C.R.
5
at 101. The Referee acknowledged that unreasonable or dangerous work conditions
that could jeopardize an employee’s health can constitute good cause for leaving
employment, but the employee “must have communicated [his] concerns to the
Employer prior to quitting.” Id. (emphasis omitted). The Referee found that,
although Claimant contended he had a compromised respiratory system,
[n]otwithstanding the vague nature of [] Claimant’s
testimony regarding any health condition which may have
caused [] Claimant to have elevated concerns regarding
contracting the C[OVID]-19 virus, the Referee credits []
Employer’s testimony that [it] had provided, or made
available, PPE to employees including masks, face
shields, [and] hand sanitizer, and was enforcing social
distancing and the wearing of masks, as well as having
implemented a cleaning protocol to disinfect surfaces.
Id. The Referee further concluded that, “by Claimant’s own admissions[,]” Claimant
“failed to notify [] Employer of any such concerns prior to resigning. As such, even
finding [] Claimant’s concerns legitimate, [] Claimant failed to communicate these
concerns to [] Employer prior to resigning in order to allow [it] a reasonable
opportunity to respond.” Id.
Claimant timely appealed the Referee’s denial to the Board alleging
several errors in how the Referee conducted the hearing, in the Referee’s credibility
determinations, and the denial of his rights under the Sixth and Seventh
Amendments to the United States (U.S.) Constitution,4 and claiming that requiring
4
The Sixth Amendment provides, in relevant part: “In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed … and to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. Claimant is not accused of any crime, and these UC
proceedings are not a criminal prosecution. Therefore, the Sixth Amendment does not apply to
this appeal. Further, we find that Claimant waived his Sixth Amendment claim, because he failed
to present argument on it in his brief to this Court. See Pa. R.A.P. 2119(a) (“The argument shall
(Footnote continued on next page…)
6
essential workers to work on Employer’s premises during COVID-19 “is not only
discrimination, it is akin to slavery.”5 C.R. at 106-11.
The Board took no additional evidence, considered the entire record,
and issued a decision and order dated April 22, 2021, in which the Board concluded
that the Referee’s denial was proper under Section 402(b) of the Law. C.R. at 113-
20. The Board found “no credible medical evidence in support of [] [C]laimant’s
assertion that he suffers from a respiratory ailment.” Id. at 113. The Board further
found
credible [] [E]mployer’s testimony that [] [C]laimant
never raised any health or safety concerns to [] [E]mployer
prior to the final text message and that [] [C]laimant’s
[S]upervisor responded by indicating that masks in the
workplace were available for everyone and that he would
talk with [] [C]laimant about his concerns when he
reported for work. [] [C]laimant never responded.
Id. The Board further concluded that Claimant’s due process and constitutional
claims were without merit. Id. The Board concluded that “Claimant was given
be divided into as many parts as there are questions to be argued; and shall have at the head of
each part . . . the particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998),
cert. denied, 526 U.S. 1070 (1999) (holding that the failure to develop issue in appellate brief
results in waiver); Browne v. Department of Transportation, 843 A.2d 429, 435 (Pa. Cmwlth.
2004) (“At the appellate level, a party’s failure to include analysis and relevant authority results in
waiver.”).
The Seventh Amendment provides: “In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined in any Court of the United States, than according
to the rules of the common law.” U.S. Const. amend. VII.
5
The Thirteenth Amendment provides, in relevant part: “Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall
exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII.
7
sufficient opportunity to present his case and he was in no way impeded by the
Referee in doing so.” Id. The Board concluded that the Sixth and Seventh
Amendments were not applicable to civil, administrative proceedings, and that the
Law does not provide for jury trials. Id. The Board further concluded that Claimant
never raised these constitutional issues before the Referee, and “therefore, [they] are
waived.” Id. The Board adopted and incorporated the Referee’s findings and
conclusions, and affirmed the Referee’s decision denying Claimant’s eligibility for
UC benefits. Id.
Claimant then petitioned for review to this Court.6 Claimant first filed
a letter appeal to this Court, which the Court accepted to preserve Claimant’s appeal
date.7 The Court directed Claimant to file a petition for review, which he did, in
which Claimant presented multiple grounds for error.8 Claimant argues that the
Board erred in concluding that he failed to prove that he had necessitous and
compelling cause to resign, based on the Referee’s crediting of Safety Manager’s
testimony regarding PPE that was available to Claimant at the time Claimant
resigned, and because the Referee did not credit Claimant’s testimony about his
underlying health issues. In his brief to this Court, Claimant expands upon the
difficulties that he faced while working for Employer during the COVID-19
emergency, but he provides no legal authority to question the Referee’s or Board’s
credibility determinations, other than his disagreement with those determinations.
6
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law occurred, or whether necessary findings of fact were
supported by substantial evidence. Hessou v. Unemployment Compensation Board of Review, 942
A.2d 194, 197 n.3 (Pa. Cmwlth. 2008).
7
See Pro Se Letter on How to Appeal dated May 27, 2021.
8
We have reordered Claimant’s questions for ease of discussion.
8
The Board responds that it resolved conflicting evidence in Employer’s favor, and
that substantial evidence supports its findings. After careful review of the record,
we discern no error in the Board’s findings, based on its credibility determinations.
It is well settled that
the Board is the ultimate fact-finder in [UC] matters and is
empowered to resolve all conflicts in evidence, witness
credibility, and weight accorded the evidence. It is
irrelevant whether the record contains evidence to support
findings other than those made by the fact-finder; the
critical inquiry is whether there is evidence to support the
findings actually made. Where substantial evidence
supports the Board[’]s findings, they are conclusive on
appeal. . . . [T]he prevailing party below [] is entitled to
the benefit of all reasonable inferences drawn from the
evidence.
Ductmate Industries, Inc. v. Unemployment Compensation Board of Review, 949
A.2d 338, 342 (Pa. Cmwlth. 2008) (internal citations omitted).
Further, we consider Claimant’s general argument that the Board erred
in denying UC benefits when Claimant believes he provided necessary and
compelling reasons for his resignation based on unsafe working conditions or by
establishing that his health condition was a compelling reason.9 The Board responds
that its decision was proper where Claimant failed to satisfy his burden of proving
that he resigned for necessary and compelling reasons.
Whether a claimant had a necessitous and compelling reason to resign
is a question of law subject to our plenary review. Department of Corrections, State
Correctional Institution at Graterford v. Unemployment Compensation Board of
Review, 547 A.2d 470, 473 (Pa. Cmwlth. 1988). We note that a claimant has the
9
Although Claimant failed to specifically address this issue in his brief, we are inclined to
construe pro se materials liberally, so long as we can conduct meaningful appellate review. See
Robinson v. Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999).
9
burden of establishing that necessitous and compelling reasons existed for quitting
his employment. Green Tree School v. Unemployment Compensation Board of
Review, 982 A.2d 573, 577 (Pa. Cmwlth. 2009). A claimant must establish that he
acted with ordinary common sense in quitting his job, that he made a reasonable
effort to preserve his employment, and that he had no other real choice than to leave
his employment. Id. In this context, “[a]n unsafe working environment can give an
employee a necessitous and compelling reason to resign.” Id. To sustain this burden,
a claimant must demonstrate “by objective evidence” that his working conditions
were unsafe and placed him at risk. Id. at 578. “[S]afety ‘fears’ alone do not
constitute a compelling reason to resign.” Id.
We further note that for a claimant to establish that his health condition
constituted a compelling reason to resign, he must demonstrate through competent
and credible evidence that “(1) health reasons of sufficient dimension compelled the
employee to quit; (2) the employee informed the employer of the health problems;
and (3) the employee is able and available for work if the employer can make a
reasonable accommodation.” Watkins v. Unemployment Compensation Board of
Review, 65 A.3d 999, 1004-05 (Pa. Cmwlth. 2013). Although this standard “does
not require medical testimony, there may be cases where a claimant’s testimony and
supporting documents are inadequate.” Id. at 1005. Further, a claimant’s failure “to
meet any one of these conditions will bar a claim for [UC] benefits.” Van Duser v.
Unemployment Compensation Board of Review, 642 A.2d 544, 550 (Pa. Cmwlth.
1994).
As this Court has recently explained:
Whether the reason for [the c]laimant’s concerns were
adequate safety measures by [the e]mployer or fears
related to her and/or her father’s health, or both, [the
10
c]laimant’s burden to make a reasonable effort to preserve
her employment required her to give notice to [the
e]mployer as to her concerns and health conditions and
allow [the e]mployer the opportunity to modify her work
conditions. This is the case even where there is a real and
serious safety concern, see Iaconelli v. Unemployment
Compensation Board of Review, 423 A.2d 754, 756 (Pa.
Cmwlth. 1980), or where a claimant has a medical
condition which endangers her, see St. Clair Hospital v.
Unemployment Compensation Board of Review, 154 A.3d
401 (Pa. Cmwlth. 2017). Once communicated, an
employer must have a reasonable opportunity to make
accommodations with respect to the work conditions
and/or medical condition. See Blackwell v. Unemployment
Comp[ensation Board] of Rev[iew], 555 A.2d 279, 281-82
& n.6 (Pa. Cmwlth. 1989).
Lundberg v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 29
C.D. 2021, filed October 14, 2021), slip op. at 3.10 See also Hastings v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 104 C.D. 2021,
filed April 13, 2022).
We discern no error in the Board’s determination that Claimant failed
to prove that his work environment was unsafe due to Employer’s failure to provide
appropriate PPE, or that Claimant’s health condition constituted necessitous and
compelling cause to resign. The Board is the ultimate finder of fact, and we cannot
review its credibility determinations on appeal. Ductmate Industries, Inc., 949 A.2d
at 342. Further, substantial evidence in the record supports the Board’s
determination that Claimant failed to establish that his health condition constituted
a compelling reason for him to resign. Although Claimant testified at the hearing
that he had a “compromised respiratory system,” he declined to provide any specifics
10
See Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
11
about his health condition, and he offered no medical evidence to demonstrate that
he had respiratory issues. C.R. at 89. Claimant admitted and Employer confirmed
that Claimant did not inform Employer about the lack of PPE or his health condition
before he resigned. Id. at 89, 93, 97. Further, after he submitted his resignation by
text message, Claimant failed to respond to Employer’s offer to discuss the
availability of PPE or to otherwise assist Claimant. Id. at 97. Because Claimant
failed to satisfy any of the conditions to demonstrate that his health condition
constituted a compelling reason to resign, the Board did not err in denying UC
benefits. Watkins, 65 A.3d at 1004-05; Van Duser, 642 A.2d at 550.11
Claimant next argues that he was denied due process because the
Referee rescheduled the January 4, 2021 hearing without reason or notice, and
because the Referee rushed the hearing and failed to give Claimant time to think and
ask questions.12 The Board denies that Claimant’s due process rights were violated.
Beyond simply posing these questions, Claimant failed to develop or argue these
issues in his brief. Therefore, we find that Claimant waived these issues. See Pa.
R.A.P. 2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435. Even if not
waived, we find no conduct by the Referee that denied Claimant his due process
rights. As to the continuance, Claimant did not argue that he was prejudiced by the
11
See also Lundberg, slip op. at 4 (“While one can sympathize with [the c]laimant’s fears
in the face of the chaos attendant to the early stages of the COVID-19 pandemic, the [L]aw does
not excuse her of the duty to inform [the e]mployer of her safety concerns and health problems
and afford [the e]mployer the opportunity to mitigate and/or accommodate them.”).
12
In his brief to this Court, Claimant also asks why he does not have a transcript of the
January 25, 2021 hearing before the Referee. Beyond simply posing this question, Claimant failed
to argue this issue in his brief. Therefore, we find that Claimant waived this issue. See Pa. R.A.P.
2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435. Further, our review of the record
reveals no evidence that Claimant asked the Referee for a transcript of the hearing. Section 502(a)
of the Law provides that a transcript and audio recording of the hearing shall be made available
upon “written request to the referee.” 43 P.S. §822(a) (emphasis added).
12
Referee’s rescheduling of the hearing. Claimant received notice of the continuance
and participated in the January 25, 2021 hearing before the Referee. C.R. at 28-31,
33-38, 77-98. It is well settled that “we may override the judgment of the referee as
to whether or not to grant a continuance only if there has been ‘a clear showing of
an abuse of discretion.’” Steadwell v. Unemployment Compensation Board of
Review, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983) (citations omitted). Even if
Claimant had not waived this issue, we find no clear showing that the Referee abused
his discretion by rescheduling the hearing.
Similarly, even if this claim is not deemed to have been waived, we find
no conduct by the Referee that denied Claimant the opportunity to be heard at the
January 25, 2021 hearing. This Court has held that a claimant’s due process rights
are not violated when a referee has advised a claimant of his rights, asked a claimant
if he had objections throughout the hearing, and asked a claimant if he had anything
to add before the hearing ended. Kreibel v. Unemployment Compensation Board of
Review, 453 A.2d 737, 738 (Pa. Cmwlth. 1982).
Here, the Referee confirmed that Claimant received the documents
submitted by Employer. C.R. at 80-81. The Referee explained to Claimant that he
had the right to have an attorney or non-legal advisor present if he chose, present
testimony and evidence, question witnesses, and request an in-person hearing, which
Claimant stated he understood. Id. at 81-82. The Referee explained Claimant’s
burden of proof. Id. at 82. The Referee assisted Claimant in presenting his own
testimony. Id. at 88-90. After each of Employer’s witnesses testified, the Referee
gave Claimant the chance to ask questions if he chose. Id. at 93-95, 97. The Referee
explained how the hearing would proceed, with each party having the opportunity
to question the other party’s witnesses. Id. at 86. Further, we find no error in the
13
Referee’s conduct at the hearing, when the Referee followed the Board’s regulations,
which require a referee to assist a pro se claimant by advising him of his rights,
aiding him in examining and cross-examining witnesses, and giving him “every
assistance compatible with the impartial discharge of [his] official duties.”
34 Pa. Code §101.21(a). Although the Referee reminded parties to eliminate
repetitive testimony so that the hearing could be completed without scheduling a
second hearing, we discern no violation of Claimant’s due process rights, when the
Referee exercised his discretion so that all parties had the chance to present
testimony necessary to establish their rights. 34 Pa. Code §101.21(b).
As to the remaining constitutional issues, Claimant argues that
requiring him to work in-person during COVID-19 violated his rights under the
Thirteenth Amendment, and that the Referee and Board violated his right to a jury
trial under the Seventh Amendment. The Board responds that because Claimant
failed to preserve or argue these constitutional issues, they are waived. Claimant
failed to raise his claims under the Seventh and Thirteenth Amendments in his appeal
to the Referee or before the Referee. C.R. at 17-22, 77-98. Because Claimant failed
to raise these issues “at the earliest possible opportunity” before the Referee,
Claimant waived them. Dehus v. Unemployment Compensation Board of Review,
545 A.2d 434, 436 (Pa. Cmwlth. 1988). Further, beyond simply raising these
questions or repeating them in his brief to this Court, Claimant failed to develop or
argue these issues in his brief. Therefore, we find that Claimant waived these issues.
See Pa. R.A.P. 2119(a); Spotz, 716 A.2d at 585; Browne, 843 A.2d at 435.
Even if these claims are not deemed to have been waived, we find no
merit in Claimant’s constitutional arguments. The Board did not find, and Claimant
provides no authority, that being required to perform essential work in-person during
14
COVID-19 put Claimant in a position akin to slavery in violation of the Thirteenth
Amendment. Further, the Board correctly concluded that parties to a UC
administrative proceeding do not have the right to a jury trial under the Seventh
Amendment. “It is well[-]settled that, unlike the Sixth Amendment to the [U.S.]
Constitution’s rights to a jury trial in criminal cases, the Seventh Amendment jury
trial guarantee in civil cases has not been applied to the states by incorporation into
the Fourteenth Amendment.”13 Bensinger v. University of Pittsburgh Medical
Center, 98 A.3d 672, 676 n.6 (Pa. Super. 2014).14 Section 502(a) of the Law
provides that a referee shall hold hearings and make determinations regarding UC
benefit appeals, 43 P.S. §822(a), and Claimant participated in that hearing, which is
his right under the Law.
Accordingly, the Board’s decision is affirmed.
MICHAEL H. WOJCIK, Judge
13
The Fourteenth Amendment provides, in relevant part: “[N]or shall any State deprive
any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV §1.
14
“In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues.” Lerch v. Unemployment
Compensation Board of Review, 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Tewell, :
:
Petitioner :
:
v. : No. 691 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 8th day of July, 2022, the decision of the
Unemployment Compensation Board of Review dated April 22, 2021, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge