# Sharp Equipment Co. v. Unemployment Compensation Board of Review

> Commonwealth Court of Pennsylvania · October 18, 2002 · 808 A.2d 1019

URL: https://www.frixlaw.com/law-library/cases/9697725

## Case

- **Full name:** SHARP EQUIPMENT COMPANY, Petitioner, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 18, 2002
- **Citations:** 808 A.2d 1019; 2002 Pa. Commw. LEXIS 849
- **Precedential status:** Published
- **Opinion:** Concurring in part by Friedman
- **Judges:** Friedman, Leavitt, Flaherty
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CONCURRING AND DISSENTING OPINION BY
Judge FRIEDMAN.
I respectfully concur and dissent. I agree with the majority that the Unemployment Compensation Board of Review (Board) correctly determined that Martha J. Lykens (Claimant) was an employee of Sharp Equipment Company (Employer), not an independent contractor. However, I disagree that, after the Board made that determination, the Board erred in failing to consider whether Claimant had a necessitous and compelling reason for voluntarily leaving her employment with Employer.
The regulation at 34 Pa.Code § 101.87 (emphasis added) provides as follows:
When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any paHy, will be substantially served thereby.
Here, the local job center, i.e., the Department, determined that Claimant was an employee rather than an independent contractor. On appeal, the referee deemed that this was the sole issue relating to the claim and ruled only on that issue. There is no indication in the record that Claimant gave her approval for the referee to consider whether Claimant had a necessitous and compelling reason for voluntarily terminating employment with Employer. Therefore, under 34 Pa.Code § 101.87, the referee could not decide that issue.
The majority states that 34 Pa.Code § 101.87 “has been interpreted to allow the Referee to consider other issues so long as the claimant is not surprised or prejudiced.” (Majority op. at 1025.) The majority cites Hine v. Unemployment Compensation Board of Review, 103 Pa. Cmwlth. 267, 520 A.2d 102 (1987), in support of this statement. I agree that Hine allows a referee to consider other issues so long as the claimant is not surprised or prejudiced. However, this court pointed out in Hine that a claimant is prejudiced whenever the burden of proof on the initial issue belongs to the employer and the burden of proof on the other issue belongs to the claimant. 1 Id.
*1028 Here, initially, Employer had the burden of proving that Claimant was an independent contractor instead of an employee. Krum v. Unemployment Compensation Board of Review, 689 A.2d 830 (Pa. Cmwlth.1997). If the referee had considered the voluntary quit issue, Claimant would have had the burden of proving that she had a necessitous and compelling reason for voluntarily leaving her employment. Mauro v. Unemployment Compensation Board of Review, 751 A.2d 276 (Pa. Cmwlth.2000). Therefore, contrary to the majority’s analysis, the regulation at 34 Pa.Code § 101.87 did not allow the referee to consider whether Claimant voluntarily left her employment.
The majority also relies upon the regulation at 34 Pa.Code § 101.107(a) (emphasis added), which provides as follows:
In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may consider an issue in the case though not expressly ruled upon in the decision of the Department or the referee and though not previously raised in the claim or appeal proceedings. However, issues not previously considered or raised will not be considered by the Board, either upon application for, or in the determination of an appeal unless the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
(Majority op. at 1025.) Because Claimant would have been prejudiced by the need to assume the burden of proof on the voluntary quit issue, this regulation did not permit the Board to consider whether Claimant voluntarily left her employment with cause of a necessitous and compelling nature.
Finally, the majority states that Employer did not waive the voluntary quit issue, explaining that an employer need not raise an issue until the employer is aggrieved, and, here, Employer was not aggrieved until the Department granted Claimant benefits. (Majority op. at 1026-27 n. 13.) The majority cites Classic Personnel v. Unemployment Compensation Board of Review, 151 Pa.Cmwlth. 423 , 617 A.2d 66 (1992), in support of this view. However, the facts in Classic Personnel are quite different from the facts here. In Classic Personnel , this court stated,
Nowhere in the official record is there evidence that there was any communication between the Bureau and the [e]m-ployer, or that the [ejmployer had a chance to and did raise defenses against the claim. The record does not include the Notice of Application and a request for separation and wage information that the Bureau normally sends to [e]m-ployers.... Neither does the Summary of Interview contain any notation of contact with the [ejmployer....
Classic Personnel, 617 A.2d at 67 (footnote omitted). This court concluded that, “[b]e-cause the [ejmployer apparently was not given a chance to raise defenses before the Bureau, the [e]mployer could not have waived the issue [presented to the Board].... ” Id. at 69. This court stated that, under the circumstances, the employer preserved the issue by raising it “at the first available opportunity once it had become aggrieved.” Id. at 70.
Here, Employer did receive the Notice of Application and the request for separation and wage information, and Employer did raise a defense, alleging that Claimant *1029 was an independent contractor. Employer failed to anticipate that it would not prevail on that issue, choosing not to argue in the alternative that Claimant was an employee who voluntarily quit her job. Because Employer clearly had an opportunity to raise this alternative defense, and did not do so, Employer waived the issue.
Accordingly, I would affirm.
. Indeed, our supreme court has stated:
It is difficult to imagine what could be more prejudicial to claimants than if, after nearly two years of litigation and appeals, they find themselves before the lower tribunal and again forced to litigate issues long since waived, and uncertain if yet other, novel theories will be thrust upon them in another two years.
*1028 Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 118 , 436 A.2d 179, 181 (1981). Here, more than one year has passed since the job center's July 2001 determination and the referee's August 2001 decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697725. Public record. Not legal advice.