MOTION TO REMAND or REVERSE WITH PREJUDICE NARET’ v. UCBR (2004) NO. 1742 CD 2004 Dawn Naret’, Attorney for the Appellant P.O. Box 643 Lancaster, Pa. 17608 Commonwealth Court of Pa Irvis Office Bldg. – Room 624 Harrisburg, Pa. 17120 November 8, 2004 I am submitting, today, an official motion to immediately remand or reverse with prejudice, the case referenced above. I have made four (4) requests for full records of the hearing held April 21, 2004 and did finally have the kind intervention of Gerard M. Mackarevich, Deputy Chief Council of UCBR, who recently moved to assist with the incompleted cases of Clifford Blaze, Esquire, who left in August, 2004. Deputy Markarevich forwarded the transcript of the taped testimony on my 3rd request of October 25, 2004 to the UCBR for all records. The deadline for my brief had been October 12, 2004. I submitted brief, in person, on October 8, 2004 and it was rejected by an Unnamed Person who did not return them, but sent me a form instruction list of required brief form and gave me a new deadline of November 12, 2004. That is only four (4) days away and it is clear that these records have not been forwarded within reasonable time as required by Pennsylvania Code 101.54 stating; “When an interested party or his representative requests information from the file of the Board in order to present and maintain the issues at a hearing before a referee or the Board, or in an appeal to the Court, such information (including the hearing transcript, where the record was transcribed) shall be made available at a reasonable time to the party and his representative, without charge.” Upon examination of these transcripts, it was discovered that before the employers witness arrived, there was were thirty-one (31) documents already present in the file. The witness was given an opportunity to view them, upon arrival, and did not object to their inclusion in the file. But the items were Never mentioned in the hearing, never identified and never quoted from. I Immediately made a 4th request to the UCBR, repeating that I needed ALL RECORDS OF THE HEARING and I have had no response. It should be clarified to this honorable Court, that on page one (1) of the transcript, the referee is verifying names and addresses: “The employer of record is Beverly Health Care in care of TALX UC Express, P. O. Box 283, St. Louis Missouri, 63166. Is that the address you’d like to use?”. Five (5) sentences later, is a partial response sentence stating; ” This is just a corporate…” (unfinished statement). The truth is that TALX is not the employer or even affiliated with the employer except as a service-contractor, hired to appeal EVERY Unemployment Compensation Claim filed, in order to reduce the obligatory payments, of the employer, to the State Treasury Department, for the use in UC Benefit payments. It was TALX who filed this appeal after the employer already denied a situation of willful misconduct on the initial fact-finding. TALX is therefore not the employer or even a viable interested party because they are not attorneys qualifying as representatives, acceptable to present evidence or give testimony without being Judicially objected to as hearsay. May I cite: Phila. Elec. Co. v. UCBR, 129 Pa Cmwlth 417, 565 A2d 1246 (1989): “It is hearsay for a Licensed Physicians Assistant to read a test report into evidence where the assistant is not the person who conducted the test.”, ( The Physician Assistant’s reading of a lab report on test samples is not the testimony of an expert witness on the stand using his/her expertise, rather, “it is the testimony of a witness who merely reiterates and parrots the conclusions of another.”) ld.@ 1248. Also, according to; Perminter v. UCBR 426 A2d 245: ” Hearsay evidence, although properly objected to, may be used as a basis for further questioning by the referee. The testimony elicited through the hearsay itself must NOT be given substantive evidentiary value.” ( It is then of itself, inadmissible as evidence and should be struck from the record). These documents, labeled #1 (one) through # 31 (thirty-one), which I still have not received, were not presented by the employer, who attended the hearing and brought only one exhibit labeled employer’s exhibit # 1 (one). They also were never mentioned in the hearing, never identified and never quoted from. Therefore, as they have been held from inspection, necessary for the proper presentation of this appeal, I make a motion that these documents labeled #1 (one) through #31 (thirty-one) be viewed as hearsay evidence and in suspect of authenticity or relevance to this specific claimant and be struck from the record as inadmissible or hearsay evidence that could adversely affect the fact-finding and evaluation of this case. On the initial fact-finding, conducted by the Department of Unemployment Compensation, the employer denied that the claimant was terminated for “willful misconduct”, and listed “poor work performance” as their motivating factor and also stated that “she did the best she could”. This was NOT a charge of “willful misconduct”. During the hearing, the transcripts reveal that the employer, although still not admitting that the claimant was unfairly accused of incidents that she insisted she was not a party to, still heard the referee remind her, (according to page two (2) of the transcript), that she held the BURDEN OF PROOF to present evidence that “willful misconduct” had occurred. She STILL DENIED IT UNDER OATH and testified that the claimant was terminated for “poor work performance”. On the last line of page five (5) she is asked if the incident, (which the claimant denied being part of), was considered a serious “Category I” incident, (the company classifies either a Category I or a Category II on complaints) and the EW (employers witness) stated: “Actually, no it was Category II.” On page six (6), an explanation of the Categories is requested by the referee: EMPLOYER: (straight testimony without interruption): “Actually Category…if we… Category II is the LESS serious of the Categories. Category I is the more serious and corporate actually changed that somewhat within the past year. If in other words if we give a Category I they expect us to immediately suspend somebody. So we now for the most part use Category II’s unless it’s something extremely, extremely serious. We tend to use the Category II because it fits right in with POOR WORK QUALITY. It’s a 2 point…2.2, It’s POOR WORK QUALITY AND PRODUCTIVITY and that’s…” The employer is then asked what the policy is then for Category II (less serious) policy and she explains: EMPLOYER: “Right…right oh…and she was….actually I’m sorry I should’ve said…mentioned that…after 4 warnings the counceling’s don’t count. After 4 warnings it’s suspension pending investigation for termination. And that was her 4th”. Therefore, although the employer appears to have satisfied the four warnings requirement for suspension, she never testified whether there was an investigation conducted as was ALSO required, according to her testimony. There were several discrepancies in the testimony of the employer that are not consistent with issues that occurred or that qualify within the judicial definition of “willful misconduct”. The employer stated and again repeated that the claimant was charged with Category II , LESS serious complaints and a 2 point complaint is POOR WORK QUALITY. WILLFUL MISCONDUCT WAS NEVER PROVEN BY THE EMPLOYER. The employer also failed to present an official copy of the current company policy of required procedure for termination. The reasons and the procedure testified to, were not acceptable reasons for termination, according to actual company policy. The referee accepted hearsay testimony of questionable documents #1 (one) through #31 (thirty-one) AND hearsay testimony of what the disciplinary policy was and was blindly misled to believe that the claimant was terminated with “just cause”. The term “just cause” may vary in as many specific interpretations as there are different employers who determine their own policies and procedures. That is why the UCBR is forbidden to deny benefits according to proven “just cause”, but must have proof of “willful misconduct”, fully demonstrated as Judicially Defined in Section 402 (e): (1) the wanton and willful disregard of the employer’s interests, or (2) the deliberate violation of rules; or (3) the disregard of standards of behavior which an employer can rightfully expect from his employee; or (4) negligence which manifests as culpability, wrongful INTENT, EVIL DESIGN OR INTENTIONAL AND SUBSTANTIAL disregard for the employer’s interests or the employee’s duties and obligations. These are extremely serious, intentional/deliberate/willful actions that MUST occur before a label of “willful misconduct” can be applied. Negligence of clocking back in after lunch may be a company’s policy for “just cause” termination, if committed repeatedly, but it is not a negligence of the magnitude of the judicial definition of “willful misconduct” required to deny benefits and none were even intimated by the employer and definitely none were proven because none occurred. My third reason for submitting a motion to remand and reverse with prejudice, is that the UCBR failed to amend a 34-page letter of request for reconsideration to the record of the case. On July 29, 2004 I responded to the letter of denial on appeal from the UCBR decision of July 21, 2004. I sent on that day; an e-mail requesting copies of all records, I faxed a five (5) page brief letter of timely appeal for reconsideration and I post-marked a hard copy letter of detailed point by point dispute to the procedure opinions and findings as stated in the denial letter. I am forwarding a duplicate copy with this communication. I already submitted a petition to open the record for admission of additional evidence on October 25, 2004, which was the letter responded to by C.R. Hostutler on October 26, 2004. The purpose of that request was the extended wait for copies of the record that I anticipated might need additional rebuttal opportunity. This copy of the 34 page letter is not new evidence but was part of the record of the request for reconsideration WHERE THE REQUEST WAS DENIED AND NOT APPENDED TO THE RECORD FOR EVALUATION UPON APPEAL TO THE COMMONWEALTH COURT. This is yet another violation of Pennsylvania Code: “Where written application for reopening of a hearing was made to the board and there is no evidence that the referee or the board appended to the record the request, ANY supporting material, and the ruling on the request, A DISMISSAL OF THE CLAIMANTS APPEAL WILL BE REVERSED AND THE RECORD REMANDED FOR A DETERMINATION OF PROPER CAUSE FOR CLAIMANTS FAILURE TO ATTEND THE REFEREE’S HEARING.” -ORTIZ V. UCBR 85 PA CMWLTH, 327, 331, 481 A2D 1385 “Finally, a “proper cause” inquiry for non-appearance does NOT impermissibly reallocate the burden of proof in a “willful misconduct” setting.”. -FLORES V. UCBR 686 A 2D 66 (PA CMWLTH 1996) With this over-whelming amount of error clearly proven in the transcripts and records, I can only trust that this honorable Court will end the injustice that has so extremely burdened and financially destroyed this claimant since the initial unfair dismissal from her job. Evidence proves that she was an excellent example of a self-starter who gave extra effort in every area to assist her employer with compliance to all laws, policies and organizational efforts. This attempt, by the employer to be released from payment of UC Benefits stands as a despicable example of dishonest manipulation of the Law and of the calendars of all the departments who have given focus to this case. The employer’s witness could not bring herself to state “willful misconduct” because she knew it never existed in this claimant’s performance. And she admitted it twice in clarity. The claimant, meanwhile: (1) has a ruined reputation of job performance, (2) was unexpectedly cut off from her only source of income when the referee made the error of reversing her initial correct determination of ELIGIBLE to denied benefits, (3) she has suffered through five (5) whole months of absolutely no income, (4) has been penniless without even 50 cents to buy a newspaper or take a bus for any job searching or attending, (5) her monthly accounts have not been able to receive any payments and have now been reported to the Credit Bureau (6) the Credit Bureau will now be giving an unfavorable report on her FOR 7 YEARS (7) she will have difficulty obtaining a new position from an unfair record of her work (8) she will have difficulty passing a credit check for a new position (9) she will have difficulty passing a credit check for a new residence (10) she has received notice of utilities to be turned off for non-payment (11) she has received notice of eviction proceedings initiated already by her landlord (12) her bank has closed both her checking and savings accounts for having a zero balance for too long (13) she was seeking food at food banks to survive (14) has suffered immense stress and will continue to be adversely affected by this horrible miscarriage of justice for many years (15) she has no family or friends to move in with and will become homeless (16) she will have no address to receive mail of notice of hearing or reinstatement or receive benefit checks necessary to survive starvation and death (17) if you have no residence address, you are not eligible for food stamps or food bank donation pick-ups. The state cuts you off and leaves you to starvation. This is a shocking reality that must come to light for the protection of citizens in this country. These aggressive moves to cut citizens off from income is resulting in unbelievable numbers of increased homelessness. The UCBR admits to denying 100 to 200 cases per day just in one office. To extend the multiplication, that is 24,000 to 48,000 citizen families per year placed in this position of possible homelessness and total destruction to the magnitude that this claimant is living as the very current reality of facing death within weeks from now in spite of being totally healthy, with no acute, chronic or fatal illness. What is Pennsylvania State doing to it’s citizens? Why are they denying with prejudice, benefits for people who have worked all their lives? Now, to find out that if you no longer have an address, you are ineligible for any aid declared to be available to the needy. Who is more needy than a person who has no home? This case never should have reached this point or been extended to this amount of time or have to have traveled to this level of the judicial system before someone would stop the violations of Civil Rights, of Due Process, of UC Law and of Pa Codes and Statutes. We have a very well designed litigation system, when it is followed according to the original rules and intentions. The system was a non-prejudice system that protected employees from being unfairly dismissed or denied benefits during the transitional period. Of recent years it has been digressing toward a system of prejudice for the employer and denial of Due Process for the claimants. The major problem seems to be the cutting off of UC Benefits before an appeal has been decided. Helpful to this may first be to revise the initial appeal rules to reject appeals being filed by these contract companies that receive commission on every case they book into appeal of eligibility. They are creating havoc on the calendar and causing delays of reinstatement that never should have been lost and have created financial crisis while they were cut-off. They also are not able to present evidence or testimony as I have shown you in the Pa Codes. Their involvement in these cases is inadmissible and removal of them would greatly reduce the number of unjustified applications for appeal of eligibility. A second major problem seems to be a misunderstanding of the referee’s between termination for “just cause” by the employer and the true requirements of the label “willful misconduct”. Too many cases are being denied without meeting the requirements of the full judicial definition of the term “willful misconduct” Of serious crisis development is that the Department of Unemployment Compensation cuts off benefits immediately, upon the referee’s decision to reverse the eligible status, without giving any consideration to the fact that the case has entered an appeal status and the determination is not a final. Next, the same department sends out a Repayment Due notice, in this case it was assigned as a “no-fault” repay obligation for funds already received. THE CLAIMANT MUST NOW ALSO REQUEST THE COURT TO PERMIT RELIEF FROM THIS REPAYMENT OBLIGATION ON FUNDS SHE WAS ENTITLED TO RECEIVE AND SHOULD NOT HAVE BEEN CUT OFF FROM. CLAIMANT MUST ALSO APPEAL TO THE COURT TO ACKNOWLEDGE AND AGREE THAT THIS CRISIS CREATED BY SO MANY ERRORS SHOULD NOT HAVE BEEN PERMITTED TO REACH THIS POINT AND THE CLAIMANT IS REQUESTING RELEASE OF BENEFIT CHECKS FOR EVERY WEEK SINCE CUT OFF ON MAY 11, 2004 UNTIL DECISION DATE. AND THEREAFTER FOR AN UNLIMITED AMOUNT OF TIME, AS IT SHALL TAKE, TO OBTAIN EMPLOYMENT AND RETAIN EMPLOYMENT, BECAUSE SHE WAS ROBBED OF THE OPPORTUNITY TO ADJUST THROUGH THE TRANSITIONAL PERIOD WITH THE AID OF UC BENEFITS AND ENDED UP INSTEAD ON THE OUTSIDE OF A HUGE IRON CURTAIN THAT HAD NO EMPATHY OR SHAME FOR IT’S ABUSES. But, these errors should be caught and corrected immediately by the UCBR. Why are they passed through? Why is the UCBR consistently violating Pa Code with endless merry-go-round arguments that they will not re-open a case or consider a remand because the claimant failed to attend a hearing? I have also shown you that these arguments are now ceased forever. They are inconsistent with the UC Law, Commonwealth Court Standards, Pa Code, Federal Laws and Civil Rights. The constant defense that they write their own policy and what violations, they are alledged to have committed, are acceptable according to their policy, is unacceptable to the higher authorities according to the higher Laws and policies that they are obligated to be consistent with in their policymaking.. May I cite: VAN v. UCBR 508 PA 139, 494 A2D 1081 (1985): “ALTHOUGH THE HEARINGS ARE INFORMAL, THEY INVOLVE SWORN TESTIMONY, CROSS-EXAMINATION AND RECORDING OF THE PROCEEDINGS. AN ADMINISTRATIVE TRIBUNAL IS NOT BOUND BY ALL THE EVIDENTIARY AND PROCEDURAL RULES OF A LAW COURT SO LONG AS CERTAIN FUNDAMENTAL RIGHTS ARE HONORED, INCLUDING THE RIGHT TO A FAIR HEARING IN ACCORDANCE WITH DUE PROCESS OF LAW.” THIS MUST BE THE END OF POLICIES BEING MIS-INTERPRETED OR USED WITHOUT FULL APPROVAL AND PROPER AMMENDMENT THAT IS CONSISTENT WITH THE HIGHER RIGHTS AND STANDARDS AND LAWS PROTECTING THESE INDIVIDUALS THEY SERVE. <!– D([“mb”,” I thank you very much for a most enlightening experience. I have\n learned much and hope to be able to use the expanded knowledge productively, if I am unable to save my own life, perhaps my testimony will inspire changes in the system that may save someone else's life. \n You face an extremely serious responsibility of not only attempting to have my funds released and delivered before it is too late, but to initiate immediate changes in this predatory system that has knarled \nits demon head above the values and honor, that our country and our judicial system once held as it's identity and it's genuine character. DAWN M. NARET'
“,1] ); //–> I thank you very much for a most enlightening experience. I have learned much and hope to be able to use the expanded knowledge productively, if I am unable to save my own life, perhaps my testimony will inspire changes in the system that may save someone else’s life. You face an extremely serious responsibility of not only attempting to have my funds released and delivered before it is too late, but to initiate immediate changes in this predatory system that has knarled its demon head above the values and honor, that our country and our judicial system once held as it’s identity and it’s genuine character. DAWN M. NARET’
Current Contact Info as of 2-23-07:
P.O.Box 2315 Pittsburgh, Pa 15230-2315
— A woman who strives to be equal to a man…..is NOT working up to her capability !!! \n”,0] ); D([“ce”]); //–>