STATEMENT OF THE CASE
NARET v. UCBR NO. 1742 CD 2004 (2004)
BY DAWN NARET’, INFORMA PAUPERIS ATTORNEY FOR THE APPELLANT
This is an appeal of the final determination of the Unemployment compensation Board Of Review, (hereafter referred to as UCBR), which ruled, on July 17, 2004, that claimant was not entitled to Unemployment Compensation Benefits, (hereafter referred to as UC Benefits).
On February 7, 2004, the Unemployment Compensation Department ruled that the claimant was eligible for unemployment compensation benefits under section 402(e) of the Unemployment Compensation Law.
On March 12, 2004, a service-contract company from missouri named TALX filed an appeal to that determination claiming itself non-legal agent of the employer. A hearing was held April 21, 2004 before referee, Marilyn Gunden. A local employee of the employee was present to represent the employer. The claimant was late to arrive and was denied during two (2) phone requests to allow her a few more minutes to attend the hearing or to deliver a written testimony to be evaluated before a final decision. The referee held a 15 minute hearing with the employers representative while the claimant was on the phone but was denied the opportunity to testify.
The referee decided on May 17, 2004 in favor of the employer and ruled that the claimant was not eligible for unemployment compensation benefits under section 402(e).
On June 1, 2004 Claimant appealed the decision of the referee with the Unemployment Compensation Board of Review (hereafter referred to as UCBR) and forwarded written testimony to the UCBR as instructed by the referee’s office. On July 21, 2004 the UCBR ruled in favor of the referee and denied the claimant’s request to have the decision remanded. The presiding board members were: William A Hawkins, Chairman
Eileen B. Melvin, Member
Richard W. Bloomingdale, Member
Claimant sent the UCBR a request for reconsideration and was denied a reconsideration.
Claimant is now appealing to the honorable judges of the Commonwealth Court of Pa. A brief was hand-delivered by claimant on October 8, 2004 and was rejected by an unnamed person.
On February 21, 2004 The Unemployment Compensation Department “Notice of Determination”, listed a fact finding survey of the employer.
the employer denied willful misconduct in the findings of fact:
The claimant was last employed on February 5, 2004
The claimant’s job title was LPN Charge Nurse.
The claimant was discharged as a result of “unsatisfactory work performance”.
The claimant had been warned about the unsatisfactory work performance.
The claimant worked to the best of her ability.
Based on the employers testimony in the fact finding survey, the Unemployment Compensation Department rendered a decision of eligible for UC Benefits pursuant to section 402 (e) of the Unemployment Compensation Law.
On march 12, 2004 A service-contract company named TALX, from missouri, filed an appeal to eligibility, claiming itself representative and non-legal agent of the employer. Their appeal was charging willful misconduct that was already denied by the local employer. an appeal hearing should not have been granted
On April 21, 2004 A hearing was held at 10:30AM before referee, Marilyn Gunden. The representative for the employer, Ms. Donna Bowman, Director of nursing, arrived and was invited to inspect the file. She looked at the already existing file containing documents #1 through #31. The referee stated that she would now enter items #1 through #31, (that were not presented by Ms. Bowman), into the record if THERE was no objection, and Ms. Bowman was sworn in for testimony. The claimant was late for the hearing. She phoned in to request a short recess of a few minutes untill she could arrive. The request was denied. She was told that the hearing had already started and she was too late to attend. She phoned back a second time to request permission to drop off a written testimony, including evidence to be evaluated before a final decision by the referee. The request was denied. She was told that she would have an opportunity to present testimony to the UCBR, in an appeal process available to her if the referee decided in favor of the employer.
The hearing lasted 15 minutes and the claimant was on the phone twice, during that time, trying to attend or at least drop off written testimony.
On May 17, 2004 the referee made a determination in favor of the employer and reversed the original determination of eligible to not eligible.
On June 1, 2004 claimant filed an appeal to the UCBR, and mailed to them a 15 page initial cover letter plus 50 pages of example correspondence she had had with her superiors, aiding them in having full knowledge of problem areas and reporting her efforts to inspire state and corporate compliance and efficient functioning in the facility. She requested a timely review, by the UCBR, because UC Benefits were immediately cut off upon the referee’s decision of not eligible.
On July 6, 2004 A letter of inquiry was sent to Mr. Bill Truskey, Legislative Liaison for UCBR from the honorable Mike Sturla, PA State Representative to attempt to aid the claimant, his constituent, in ending the financial duress being suffered while awaiting remanding by the UCBR upon examination of all the testimony and evidence presented.
On July 21, 2004, three (3) months after the referee’s hearing, the UCBR supported the referee’s decision and denied eligibility of UC Benefits based on; “the entire record of the prior proceedings, including the testimony submitted at the referee’s hearing”. There was no due process available to the claimant. Her testimony and evidence were not even evaluated in the appeal. There was no appeal process. Her testimony was rejected from being accepted into the record. The discarding of the testimony of the claimant was stated to have been done because; “The claimant has not established good cause for her actions. The claimant’s request that the record be remanded for additional testimony (the claimant’s ONLY testimony) is denied as she has not advanced proper cause for her failure to appear at the original referee’s hearing.”. Page one (1) and page two (2) of the 15 page initial letter filing appeal to the UCBR gave a clear explanation that the claimant was indeed attempting to attend but was forbidden to attend and also forbidden to deliver written testimony.
On July 28, 2004 claimant submitted a request for forms to enter an appeal with the Commonwealth Court of PA., in the event that a reconsideration would also be denied by the UCBR.
On July 29,2004, following a telephone request, a written request for all transcripts and records of the hearing was e-mailed to the UCBR.
On July 29, 2004 a five (5) page brief request for reconsideration, citing the list of items being appealed, was faxed to the UCBR.
On July 29, 2004 Claimant also post-marked and mailed a 34 page hard-copy letter to the UCBR, making a formal request for reconsideration and listing specific arguments to the final decision. The specific arguments from this letter were used in the original brief presented October 8, 2004, on pages two (2) through thirty-three (33) of the “brief of petitioner” portion listed in the table of contents. (That original brief was rejected and this one is a re-submission of brief.)
On July 29, 2004, The same day the e-mail and faxed requests were received by the UCBR, the staff of the UCBR prepared a packet of several form letters, acknowledging receipt of communications, but did not include any copies of the record of the hearing.
On August 4, 2004, five (5) days later, UCBR denied the request for reconsideration leaving the denial decision standing as final.
On August 5, 2004 claimant filed official forms, requesting an appeal to the decision of the UCBR, in the Commonwealth Court of Pa., prior to the 30 day deadline of August 30, 2004, and following the denial for reconsideration.
On September 2, 2004 a motion was filed and approved requesting permission to submit fewer number of briefs to the Commonwealth Court of Pa. claimant had still not received copies of hearing records that were imperative to the preparation of the court brief. There was also a discrepancy existing with the name of legal council for the UCBR, listed on the order to submit a brief by October 12, 2004. Council listed was Clifford Blaze, Esquire, c/o UCBR, respondent. Unable to locate a phone # for attorney Blaze.
On October 8, 2004 Claimant traveled to Harrisburg, Pa and hand delivered five (5) copies of brief to the Commonwealth Court of Pa. prior to the October 12, 2004 deadline. Also, one (1) copy of brief and certificate of service were delivered and accepted by ms. Denise Roddy, Supervisor of UCBR, 10 th floor Labor and Industry Bldg., Harrisburg, pa. Ms. Roddy signed the receipt of acceptance and explained that Clifford Blaze, Esquire had left his assignment as legal council for the UCBR in August 2004 and she was currently handling appeals for the UCBR. Claimant had still received no response to two (2) requests for copies of hearing records, but was forced to submit a brief before the deadline.
On October 13, 2004 five (5) days later, claimant received an order of rejection of brief with a full list of required form, but no listing of any specific inconsistency to acceptable form. There was also no copy of brief returned with the order. This created great unfair demand to create and submit a new brief because no indication was given as to why the original had been rejected. The new deadline for submission was November 12, 2004.
On October 25, 2004 claimant e-mailed a third (3rd) request to the UCBR to please expidite the July 29th telephone and e-mail request for copies of the hearing records.
On October 26, 2004 that e-mail was responded to and a transcript of the taped testimony of the employers representative was forwarded to the claimant by Gerard M. Mackarevich, Deputy Chief Council for UCBR. However, on page two (2) of the transcript a reference was made to documents #1 through #31 being placed into the file before the employers representative arrived at the referee’s office. The representative was given an opportunity to look at them and then they were entered into the record and the representative was sworn in to begin testimony.
On October 25, 2004 claimant mailed a hard copy letter to the Commonwealth Court requesting, “to re-open records of this proceeding for the reception of further evidence.” and also requesting a verification that all major testimony and correspondence, from claimant to the UCBR, were available in the file presented to the Commonwealth Court of Pa. “My main concerns are that you have copies of: 15 page initial letter to UCBR requesting an appeal, a 50 page packet of sample communications to my superiors and a 34 page letter requesting a reconsideration of the UCBR denial of my request for an appeal. and an authentic copy of corporate termination rules to be included.”. (none was presented to the referee, termination policy and “just cause” requirements were accepted on hearsayof the representative).
On October 26, 2004 a response to that letter was prepared and mailed to claimant by Mr. C.R. Hostutler, Deputy Prothonotary/Chief Clerk. Verification was given of the presence of a 15 page initial letter, a 50-page packet of sample correspondence to superiors and the five page brief request for reconsideration that was faxed on July 29, 2004. It was discovered that the hard copy full request for reconsideration, with itemized points of dispute, that was post-marked the same day, was not included in the file. There was no mention of records and transcripts of the hearing that were available. “If you believe the record is incomplete, you may file a motion to modify the record with this court.” The motion to modify the record was the letter he was responding to. The request to re-open the records for reception of further evidence was already submitted.
On November 3, 2004 claimant e-mailed a forth (4th) request for full release of all records of hearing, specifically documents #1 through #31 that were entered into the record on page two (2) of the transcript, but not identified or quoted from during the hearing and not presented by the employers representative during testimony. (Claimant is now facing a deadline of November 12, 2004 for re-submission of brief.)
On November 8, 2004 The 4th request to the UCBR for the remaining records of the hearing, specifically documents labeled #1 (one) through #31 (thirty-one) have not been forwarded for inspection or consideration in the preparation of the replacement brief demanded by C.R. Hostutler, Deputy Prothonotary/Chief Clerk.
Claimant is therefore requesting an immediate remand or reversal with prejudice on this case due to lack of timely release of records that are imperative to the preparation of the brief. We are now four (4) days from the deadline of November 12, 2004 slated for submission. It is inconsistent with PA Code 101.54 which requires timely release of “INFORMATION FROM THE FILE” that are necessary for the preparation of a brief.
Updated 2-25-07 by Dawn Naret’ to merge the original file Statement of the Case with later update and continuation of the chronological activity.
Current Contact Info:
Dawn Naret’, P.O. Box 2315, Pittsburgh, Pa., 15230-2315
STATEMENT OF THE CASE
2-26-05 UPDATE OF CHRONOLOGICAL ACTIVITY
BY DAWN NARET’, ATTORNEY PRO SE
DOCKET NO. 1742 CD 2004
NOVEMBER 10 Post-mailed Official Motion by Appellant to Remand or Reverse with Prejudice to Commonwealth Court. Included a duplicate copy of the 34 page letter, requesting re-consideration, that was not appended to the record by UCBR, as verified by Mr Hostutler, Chief Prothonary. E-mailed copy and Certificate of Service to Gerard Mackarevich
NOVEMBER 11, 2004 Phone call from Mr. Don Wagner, Prothonotary clerk, requesting Copy of Certificate of Service for Motion to be forwarded. Acknowledged receipt of Motion to Remand or Reverse with Prejudice.
Provided Fax # 717-787-9559.
“no hard-copy follow up required”
NOVEMBER 11, 2004 Phoned P. Michael Sturla, Pa State Representative to request permission to have faxing done by his staff. He agreed to leave written permission for assistance to be given Monday – I declined immediate need.
NOVEMBER 12, 2004 Discovered that E-Mail to Deputy Mackarevich was returned by the UC Dept. staff with a note that this should be sent to Commonwealth Court (??).
Faxed copies instead to number listed on Deputy Mackarevich’s stationery 717-783-5027. – “Successful Transmission” – From F&M College Campus.
NOVEMBER 12, 2004 Also faxed copy of Certificate of Service to Mr. Wagner, per his request, at number provided, “Successful Send” – From F&M College Campus.
November 14, 2004 Prepared Addendum to Motion of the Appellant to Remand or Reverse with Prejudice and faxed to both Commonwealth Court at the number provided by Mr. Wagner, Prothonotary Ofc. And to Deputy Mackarevich at his ofc. Fax number. Included a cover letter with a 5 th request for the remaining records, specifically items #1 to #31. Transmission Incompleted at F&M College Campus. Resent both from Office of P. Michael Sturla, Pa State Representative. –”Successful Send” left copy in his office file.
NOVEMBER 26, Received copy and Certificate of Service for 11/24/04 Motion by UCBR to Dismiss Petitioner”s Appeal, submitted by UCBR Counsel, Janet M. Tarczy, Assistant counsel for UCBR. Motion, in its text, acknowledges receipt of; 10/25/04 request for records that was E-Mailed to the same address; (L& I-UC-Appeals@state.pa.us) as the later Motion by the Appellant to Remand, that the staff refused to accept for Deputy Mackarevich. Therefore, this was a correct number and the delivery should not have been refused. The text in the Motion by the UCBR to Dismiss, also acknowledges receipt of my 11/8/04 Motion to Remand or Reverse with Prejudice, plus Addendum, plus cover letter making the 5 th request for missing records.
NOVEMBER 29, 2004 Prepared Opposition to the Motion by Janet M. Tarczy to Dismiss the Petitioner’s Appeal.
NOVEMBER 30, 2004 Faxed copies of Opposition to the Motion to Dismiss to both Counselors Mackarevich and Tarczy at UCBR and to Commonwealth Court, using same correct fax numbers. – “Successful Transmission” from the office of P. Michael Sturla, Pa State Representative. Left a copy of this plus 5 other letters of communication, pertaining to this case, in his hard copy file. Transmitted E-Mail msg. and attachment of Opposition to Motion to Dismiss document to his Legal Liason, Pat Coller to make available in his system file.
DECEMBER 6, 2004 Received notice from Prothonotary’s office that this case will be dismissed, per request of UCBR, due to lack of reponses or evident interest from appellant, IF a brief is not submitted by Dec. 15, 2004. * Prothonotary Clerk is still refusing to submit the motion to remand or reverse with prejudice TO THE JUDGE, as is required to be done, immediately upon receipt. The prothonotary clerk is ALSO still demanding submission of a brief which was deemed a canceled dead-line requirement, upon the submission of the motion to remand or reverse with prejudice.
BRIEF WAS NOT SUBMITTED – BECAUSE LEGAL PA PROTOCOL CANCELED IT AS A REQUIRED SUBMISSION, PENDING INVESTIGATION, BY THE JUDGE INTO COMPLAINTS OF LACK OF COOPERATION FROM UCBR. THE UCBR HAD 20 DAYS TO DEFEND THEMSELVES TO THE COMPLAINT AND NEVERED OFFERED A DEFENCE. THEY INSTEAD FILED A MOTION TO DISMISS THE APPELLENT’S CASE. A CLEAR REJECTION OF PROPER PROTOCOL AND FINAL EVIDENCE THAT VERIFIED AND VALIDATED THE APPELLANTS CHARGE OF NO COOPERATION. CASE WAS DISMISSED AND CLOSED 12-15-04.
2-25-07 Updated and to merge with original continued file as the continued chronilogical activity of the case.
Current Contact info:
P.O. Box 2315,
Pittsburgh, Pa., 15230-2315