DAWN NARET’ P.O. BOX 2315 PITTSBURGH,PENNSYLVANIA
LINK TO MY OTHER WEB/BLOG SITES:
“HEY BUDDY, CAN YOU SPARE A LATTE ?”
“SUB ATOMIC QUANTUM HUMOR”
“58 YEAR OLD NATURAL-BORN LADY”
STATEMENT OF THE CASE
NARET v. UCBR NO. 1742 CD 2004 (2004) BY DAWN NARET’, ATTORNEY FOR THE APPELLANT
PROCEDURAL HISTORY: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, MemberRichard W. Bloomingdale, and MemberClaimant 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
WEB SITES:in the findings of fact:1. The claimant was last employed on February 5, 2004
2. The claimant’s job title was LPN Charge Nurse.
3. The claimant was discharged as a result of “unsatisfactory work performance”.
4. The claimant had been warned about the unsatisfactory work performance.
5. 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 grantedOn 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.
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 CASE2-26-05 UPDATE OF CHRONOLOGICAL ACTIVITY
BY DAWN NARET’,
ATTORNEY PRO SEDOCKET 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 Prothonotary. 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; 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 Liaison, 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 NEVER 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 BY DECISION OF THE ATTORNEY FOR THE UCBR COMMANDING AND CONTROLLING THE PROTHONOTARY CLERK.
(The official Judge never heard of it or saw the evidence – the PA Judicial System was to corrupt to follow the proper procedural process).
(JUNE 27, 2007 “ STATEMENT ” OF EVENTS UPDATED, BY DAWN NARET’, FOR WEB PUBLISHING)
ON DEC. 13, 2005, APPELLANT WAS EVICTED FROM APARTMENT FOR NON-PAYMENT OF RENT. HAVING NO WHERE TO GO, NO MONEY AND NO VEHICLE, SET OUT ON FOOT. WITH A PULL TOTE. ALL PERSONAL BELONGINGS WERE LOST, INCLUDING FAMILY PHOTOS, HISTORY, ANTIQUES AND PIECES OF ORIGINAL ART, COLLECTOR PRINTS AND LITHOGRAPHS
APPELLANT WAS FORCED TO SEEK SHELTER IN THE LOCAL TOWN HOMELESS SHELTER.
OVER-EXPOSURE TO INSECTICIDE AND A DEPLORABLE ENVIRONMENT, NOW FOLLOWED THE RECENT ON-SET OF DETERIORATING HEALTH THAT WAS INITIATED WHILE EMPLOYED AT THE LAST JOB POSITION.
THERE WERE CONSTANT ENVIRONMENTAL CONTAMINANTS CAUSING AN ABNORMAL INCREASE IN THE OCCURRENCE OF RESPIRATORY AND INFECTIOUS ILLNESSES AMONG STAFF AND RESIDENTS.
APPELLANT WAS HOSPITALIZED AND DIAGNOSED WITH C.O.P.D., CHRONIC OBSTRUCTIVE PULMONARY DISEASE AND PERMANENT LUNG DAMAGE.
APPLICATION FOR SOCIAL SECURITY MEDICAL DISABILITY WAS FILED AND APPROVED AND APPEALANT COULD NEVER WORK AGAIN.
THE CASH BENEFIT FROM SOCIAL SECURITY WAS ONLY $940. PER MONTH WITH NO MEDICARE COVERAGE PERMITTED FOR 2 YEARS.
THE STATE OF PENNSYLVANIA DEMANDED A GARNISHMENT, FOR A DELINQUENT STUDENT LOAN, TO BE SEIZED EVERY MONTH OUT OF THE BENEFIT CHECK, REDUCING INCOME TO $750 PER MONTH AND CANCELLED STATE MEDICAL COVERAGE THE SAME DAY THAT FEDERAL DISABILITY WAS APPROVED.
STATE AND FEDERAL SOCIAL SERVICES DEPARTMENTS AND AGENCIES CONTINUE TO ACT WITH OBSTRUCTION AND PREJUDICE, IE: SECTION 8 LOW-INCOME HOUSING APPLICATION WAS REJECTED THREE TIMES FOR LANDLORD EVICTION OR BAD CREDIT REPORT. ALSO ACTION HOUSING AGENCY REJECTED APPLICATION FOR LOW INCOME HOUSING, DUE TO BAD CREDIT REPORT. THESE ATROSITIES OF PRDJUDICE AGAINST HOMELESS PEOPLE IN FINANCIAL CRISIS ARE PREVENTING THE POSSIBILITY OF OBTAINING HOUSING. THE MEGER INCOME WOULD NOT AFFORD RENT, UTILITIES AND FOOD.
JUNE 27, 2007 APPEALANT IS STILL HOMELESS AND RECEIVING APPROX. $750 PER MONTH SOCIAL SECURITY INCOME, WHICH DOES NOT LAST 30 DAYS, WHILE FORCED TO OBTAIN MEALS IN RESTURANTS. USUALLY, THE LAST 2 WEEKS OF THE MONTH ARE SPENT EATING CRACKERS OR CHIPS.
NIGHTS ARE SPENT SITTING UP ON A BENCH WAITING UNTIL THE BUSSES START RUNNING SO YOU CAN GET TO A BATHROOM.
SLEEP OCCURS IN SHORT DOZING PERIODS, WHENEVER YOU CAN GET AWAY WITH IT, WITHOUT SOMEONE TAPPING YOU ON THE SHOULDER AND TELLING YOU THAT YOU CAN’T SLEEP HERE. …………….SOME CITIZENS ARE LESS THAN HUMAN.
Current Contact info:
P.O. Box 2315,Pittsburgh, Pa., 15230-2315
EMAIL: (CONTINUED NEXT PAGE)
http://www.dawnnaret.blogspot.com/ “WE THE PEOPLE”
http://www.dawnnaret.wordpress.com/ “BUDDY, CAN YOU SPARE A LATTE ?”
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EXIBIT #2 MOTION TO REMAND OR REVERSE WITH PREJUDICE
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:
“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
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
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
(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”
-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
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
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.
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
MOTION TO REMAND OR REVERSE WITH PREJUDICE
CASE NO. 1742 CD 2004
SUBMITTED NOVEMBER 10, 2004
APPENDED NOVEMBER 14, 2004
BY DAWN M. NARET’, ATTORNEY FOR THE APPELLANT
On April 21, 2004, during the original hearing, the claimant called into the office with a question on directions and was told that the hearing had already started and she would not be able to attend. She requested a continuance of a few minutes until she could arrive and the denial was repeated that the hearing had already started and she would not be able to attend.
Within minutes, she called back, a second time and requested permission to at least drop-off a written testimony, with supporting documents of evidence, that she wished to present and have considered before a final decision.
This request was also denied and she was told that she would have an opportunity to present written testimony in an appeal to the Unemployment Compensation Board of Review (UCBR), if the referee decided in favor of the employer.
I hold this interactive incident as further evidence of prejudice that has been unjustly obstructing the right to due process and a fair hearing, without prejudice, as required to be conducted by the UCBR.
May I repeat VANN 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.
The claimant appeals to this honorable court to acknowledge, in their conclusion, that where opinions and policies have, on several occasions, agreed that if an employer is absent from the hearing, then the available record, which is usually the initial fact-finding plus the additional written testimony and material evidence, mailed in by the employer, as reasons why they are appealing an initial determination of eligibility, will be enough information in the record for the referee to evaluate and make a final decision, even in the absence of the employer.
The charge of prejudice lies in the acceptance of the additional written testimony, with any material evidence, that has been mailed-in and accepted into the record, in the absence of the employer, to be considered before a final decision by the referee.
If then, the employer has been given the opportunity to mail-in additional written testimony and material evidence, to be entered into the record before a final decision, even in his/her absence, then the same situation, from the aspect of the claimant, where the claimant is absent from the hearing, and the referee is permitted to conduct the hearing in their absence and determine a final decision based upon the available record, which includes the written testimony and material evidence mailed-in, by the employer, with their petition for an appeal, then the claimant, who is absent, is not being given the same opportunity for a fair hearing unless they are also afforded the same opportunity to deliver or mail-in written testimony as the employer did.
A final decision, where the employer was afforded the opportunity to add additional written testimony to the record and the claimant was denied or not offered the same opportunity, is a final decision formed with prejudice, and the claimant has not been offered the opportunity for a fair hearing.
Due process has then been violated if the final decision is made in the absence of the claimant and a continuance has been denied. Also, the employer was not obligated to prove “proper cause” for being absent, in order to have his/her written testimony accepted into the record prior to the final decision, and neither can the claimant be demanded to prove, “proper cause” for absence, before being afforded an opportunity for submitting a written testimony.
The absence of a claimant does not waive the right to due process and a Fair Hearing. Therefore, having a hearing scheduled, where they could not attend, was NOT giving them full opportunity for a fair hearing, if the opportunity for submission of written testimony, to be evaluated before a final decision has been made, has been denied.
The referee is obligated to decide these cases on their merit, according to the information available in the record. If that information is unjustly accepted from one party and not the other party, then the merit is not fairly determinable, if the referee is evaluating, with prejudice, the record of only one party.
The opportunity to submit written testimony cannot be denied to the claimant, if it is not denied to the employer. A final decision must include additional written testimony, of the claimant, if it accepts additional written testimony of the employer.
The initial fact-finding affords the employer an initial testimony written into the record. The employee is notified of the fact-finding comments, of the employer, in the initial determination letter from the Unemployment Compensation Department (UC Dept.).
The employee is NOT given an opportunity to cross-examine or rebutt any of these comments. If the UC Dept. determines that the employee is eligible for benefits, the employer is afforded the opportunity to appeal the determination and is given a SECOND opportunity in stating reasons why they seek appeal and to attach any material evidence they wish to have accepted into the record. The employee is not given an opportunity to cross-examine or rebutt any of these new comments either, until the hearing.
If the employee cannot attend the hearing, then there are TWO mailed-in written testimonies of the employer and NONE from the employee, to be evaluated according to merit. What is going to be evaluated? It is a ONE-SIDED, PREJUDICED EVALUATION PROCESS.
Now, if there is yet the attendance of the employer, with or without accompanying witnesses, giving oral testimony, objecting to the eligibility of benefits, in the absence of the employee, then the merit, of the record, now contains at least THREE and possibly more testimonies, if witnesses were present, from the employer and NONE from the employee.
In both situations, where the employer is absent or not absent, the record is unjustly tipped in favor of the employer and is obviously being evaluated with prejudice, if it is evaluated without at least ONE opportunity, for even ONE written testimony to be entered into the record, from the employee, in the event of their absence from the physical hearing. They clearly have NOT been afforded the opportunity of a fair hearing.
The obligatory evaluation, without prejudice, by the referee, before making a final decision, cannot be waived by the referee, by the claimant, by the employer or by the UCBR, who are also obligated to assure the opportunity for a fair hearing and order a continuance if there is any doubt that this was accomplished at the referee’s hearing. A ONE-SIDED, PREJUDICED EVALUATION PROCESS is definitely cause to doubt that a fair hearing was indeed afforded.
It is a Constitutional Right to due process, without prejudice, and it is a Fundamental Right that the UCBR is obligated to be consistent with in their policymaking, according to, again I would like to reiterate: VAN V. UCBR 508 PA 139, 494 A2d 1081 (1985), “SO LONG AS CERTAIN FUNDAMENTAL RIGHTS ARE HONORED, INCLUDING THE RIGHT TO A FAIR HEARING IN ACCORDANCE WITH DUE PROCESS OF LAW.”
These Fundamental Rights, even in an informal UCBR setting, were already upheld by the Supreme Court in; DILLIPLAIN v. LEHIGH VLY. TRUST CO. 457 PA 255, 322 A2d 114 (1974). AND DILLIPLAIN WAS LATER SPECIFICALLY EXTENDED TO COVER UCBR PROCEEDINGS IN WING v. UCBR.
IN WING v. UCBR 496 PA 113, 436 A2d 179 (1981), the Supreme Court advised the UCBR to, “DISCARD THE DOCTRINE”. The Supreme Court explained the rationale for “DISCARDING THE DOCTRINE”, (the doctrine of Fundamental error) by noting; ” THE ADMINISTRATIVE LAW TRIBUNAL MUST BE GIVEN THE OPPORTUNITY TO CORRECT ITS ERRORS AS EARLY AS POSSIBLE; DILIGENT PREPARATION AND EFFECTIVE ADVOCACY, BEFORE THE TRIBUNAL, MUST BE ENCOURAGED BY REQUIRING THE PARTIES TO DEVELOPE COMPLETE RECORDS AND ADVANCE ALL LEGAL THEORIES AND THE FINALITY OF THE LOWER TRIBUNAL’S DETERMINATIONS MUST NOT BE ERODED BY TREATING EACH DETERMINATION AS A PART OF A SEQUENCE OF PIECEMEAL ADJUDICATIONS.” – Id, @ 117, 436 A2d @ 181. “SUCH RATIONALE CONTINUES TO BE SOUND.”
They are to make every effort to investigate thoroughly by NOT erroneously denying a continuance, but are instead to grant a continuance more readily in order to create a complete record, so that they can be, “GIVEN THE OPPORTUNITY TO CORRECT ITS ERRORS AS EARLY AS POSSIBLE.” How can they correct their errors, if they dismiss due process and send the unsatisfied party into a higher appeals arena, still trying to receive correction on a fundamental error made at the referee level? Or repeated at the UCBR level?
The SEQUENCUAL PIECEMEALING OF ADJUDICATIONS, is the error of forming a denial based on one issue, where a second issue forbids denial. This case has not been thoroughly investigated, assembled into a complete record or judicially resolved, whatsoever, and cannot avoid being remanded or reversed for violation of due process.
IE: A claimant, absent at a hearing, is denied a continuance and is claiming that there was not fair and equal opportunity to present equal testimony into the written record, which served as the basis for evaluating the merit according to available information. The UCBR upheld the referee’s denial of benefits, stating that the claimant was absent and did not give “proper cause” for the absence and was already afforded the opportunity for a fair hearing. –ISSUE #1
IE: The same claimant, absent at the hearing where there is a charge of willful misconduct, and the employer did not satisfy the Burden of Proof, for willful misconduct. A continuance, affording further testimony and evidence are refused, because the claimant was absent and was already afforded the opportunity for a fair hearing, then the UCBR is repeating the error of the referee in forming a denial based on ONE issue where another issue, willful misconduct ISSUE #2, forbids denial.
They cannot deny benefits because a claimant was absent at a hearing. The absence is issue #one and absence is not an acceptable reason to deny benefits. The issue #TWO compounds the error, with the evidence that the employer never satisfied the Burden of Proof with testimony on the willful misconduct charge. This is a SECOND issue that forbids the denial of benefits “where the employer has not proven willful misconduct”.
These are examples of exactly what the Supreme Court was referring to when it advised the UCBR to, “DISCARD THE DOCTRINE”.
The UCBR did in fact attempt to violate the findings of the Supreme Court and present a, SEQUENCE OF PIECEMEAL ADJUDICATIONS, in denying on ISSUE #1 and neglecting on ISSUE #2. The UCBR neglected to consider the sworn testimony of the employer’s witness, who under oath, denied that the reason for termination was willful misconduct.
The claimant was absent from the hearing, so a denial of benefits was upheld, by the UCBR, and the failure of the employer to prove willful misconduct was neglected and permitted to be buried below the absence issue even though it is forbidden to be present in a denial decision.
The Supreme Court already determined that these UCBR policies and procedures and dismissals and denials are violations of Fundamental Rights and advised that these doctrines be discarded in 1981.
Therefore, in every instance since 1981, where the UCBR has upheld a denial for benefits and has denied a request for continuance, due to the absence of a claimant, in a willful misconduct setting, even where the “Burden Of Proof” of willful misconduct, in the full definition as judicially defined, was not satisfied by the employer, they have been in violation of a Supreme Court decision and advisement, to void these policies (DISCARD THE DOCTRINE) THAT INHIBIT THE REQUIREMENT THAT THEY DEVELOP COMPLETE RECORDS AND ADVANCE ALL LEGAL THEORIES.
They CANNOT refuse a continuance due to absence from the original hearing,
They CANNOT refuse written testimony, from an absent party, to be accepted into the record, if they have accepted it from the opposing party, for evaluation before a final decision,
They CANNOT uphold an adverse decision, in a willful misconduct setting, where the “burden of proof” was not satisfied,
They CANNOT refuse or uphold a refusal for continuance, where an absent party has had NO opportunity to give ANY testimony, neither written or verbal,
They CANNOT repeatedly refuse to re-open cases or accept additional evidence, merely due to the objection of a re-opening, by the opponent, where the opponent’s objection would be obstructing the right to due process if the objection is not over-ruled and the request is not granted.
These conclusions are NOT open for discussion or dispute. They have already BEEN decided by the SUPREME COURT.
Also, accepting that we cannot enable the possibility of blatant disregard of a Notice of Hearing, we must also consider that an absence, although entitled to present written testimony to be evaluated before a final decision, does already carry a consequence, in that the absent party is not able to witness the proceedings and is therefore, unable to cross-examine or rebut during the hearing.
They do not become aware of testimony presented unless they request transcripts and records of the hearing, which are to be made available with the absence of either party, in order to prepare an appeal, and they should be informed of this availability. If they have testimony and evidence to present, that would be relevant to the decision, they suffer a delay in the opportunity for rebuttal, but a continuance and that opportunity for rebuttal is required by Law.
Any policies proposed by the UCBR and approved as amendments to PA Codes and Statutes must meet the criteria test of consistency; that “CERTAIN FUNDAMENTAL RIGHTS ARE HONORED, INCLUDING THE RIGHT TO A FAIR HEARING IN ACCORDANCE WITH DUE PROCESS OF LAW.”.
Violation of this obligation is now verified by the Commonwealth Court and the supremacy of its opinion over the policies of the UCBR, plus the support of those just opinions by the Supreme Court, will nullify the standing, credibility and acceptance of these policies, as arguments that would DISREGARD the decision by the Supreme Court, if they do not pass the criteria test of consistency to Basic and Fundamental rights, as already demanded and clarified by the Supreme Court, and now I must request that it also be supported, reiterated and upheld by the Commonwealth Court of Pennsylvania. (end of addendum)
AUTHOR: DAWN NARET’
2-28-07 author update: Current Contact Info:
P.O.Box 2315, Pittsburgh, Pa. 15230-2315
Email: email@example.com OR firstname.lastname@example.org
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NARET’ V. UCBR (2004) DOCKET NO. 1742 CD 2004
11/29/04 REPLY FROM APPELLANT TO:
11/24/04 RESPONSE FROM UCBR TO PETITIONER’S 11/8/04 MOTION TO REMAND OR REVERSE WITH PREJUDICE
OPPOSITION TO: 11/24/04 MOTION TO DISMISS PETITIONER’S APPEAL FILED BY UCBR
APPELLANT IS FILING AN AFFIDAVIT IN OPPOSITION TO THE 11/24/04 MOTION, BY UCBR, TO DISMISS PETITIONER’S APPEAL
COMMONWEALTH COURT OF PENNSYLVANIA
CASE DOCKET NO. 1742 CD 2004
DAWN NARET’, ATTORNEY, PRO SE,
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
NARET’ V. UCBR (2004) NO. 1742 CD 2004 (CONT’D)
APPELLANT, DAWN NARET’, ATTORNEY PRO SE, FILES THIS
OPPOSITION TO MOTION TO DISMISS PETITIONER’S APPEAL FOR THE FOLLOWING REASONS:
(The reply number will correspond to the response line it is replying to as much as possible)
1. The Unemployment Compensation Board of Review (hereafter referred to as the UCBR) filed this 11/24/04 Motion to Dismiss as a response to the 11/8/04 9 page Motion to Remand or Reverse with Prejudice and 7page Addendum, filed by the appellant (petitioner). The arguments and legal citings in the appellant’s combined 16 page Motion, with its Addendum, presented undebatable evidence that conduct and procedure were repeatedly in error in this case, since the initial filing of an appeal against the decision of eligibility, made by the Department of Unemployment Compensation. Their initial, correct decision was based on the fact that the employer denied willful misconduct on the initial fact-finding inquiry and repeated that denial, in the dialog of the transcripts, as specified in the appellants Motion to Remand or Reverse with Prejudice/plus Addendum. They were essentially appealing the initial employer’s own testimony or to clarify, disputing with themselves, which once testified, cannot be revoked or appealed by the party that testified, and definitely should not be given a scheduled appeal hearing date, because that would unacceptably inflate the hearings calendar.
2. On July 21, 2004, the UCBR defaulted procedure by adopting the illegal decision, by the referee. It is illegal to deny UC Benefits, where the employer failed to prove willful misconduct, and clearly stated, in the transcripts, that the ALLEGED offense was a Category II, which is the “LESS SERIOUS” Category.
3. On October 8, appellant met the timely deadline of October 12, 2004, for filing brief, in spite of the UCBR’s failure to respond with a timely submittal of all hearing records. Brief was hand-written.
4. On October 12, 2004, the prothonotary’s office rejected the brief, for form, and set a new deadline of November 12, 2004. Appellant made every effort to encourage expedition of the forwarding of requested records but had only a portion of them forwarded on October 26, 2004, through the kind intervention of Gerard Mackarevich, Deputy Chief Counsel for the UCBR. On November 3, 2003, a 4 th written request demanding the complete record, including ” documents #1 through #31″, that were mentioned on page 2 of the transcripts. None of the documents were forwarded even to date. Appellant then had no alternative but to file a timely 9page Motion to Remand or Reverse with Prejudice plus a 7 page Addendum to the Motion on November 8, 2004, due to lack of UCBR’S cooperation in forwarding all records. This also nullified the new deadline of November 12, 2004 for filing a brief, according to the FEDERAL Rules of Appellate Procedure on Motion to Remand: “The motion shall be filed prior to the filing of the appellant’s brief.” – Rule 23B Section (A) paragraph 2. And may I also cite Rule 23B Section (D), “Oral argument and the deadline for brief shall be VACATED upon the filing of a Motion to Remand under this rule.”.
It has frequently become apparent that the UCBR operates under a misconception of the extent of their own autonomy, in policymaking, as well as policy following, that has often revealed them to be non-compliant to the superior policies and authorities of the laws, policies and procedures of the Commonwealth Court, The UC Laws and the Federal Superior Court Procedures, THAT THEY ARE ALSO SUBORDINATE TO, in their UPWARD ASSIGNING OF APPELLANT DISPUTES. These higher authorities cannot and will not abide by the non-compliant policymaking practices of the UCBR, WHERE DUE PROCESS WOULD BE VIOLATED IF NON-COMPLIANT UCBR POLICIES WERE PERMITTED TO OVER-RIDE THE HIGHER AUTHORITIES THAT HOLD SUPREMANCY OVER THEIR DEPARTMENT.
5. The UCBR, on Item #5 of their Motion to dismiss, incorrectly implies that the appellant has not complied with proper requirements of Chapter 21 of the Pa Rules of Appellate Procedure. The fact is, the appellant was exactly correct in timely functions and form, and the UCBR has attempted to persuade this court to overlook the filing of the combined 16 page Motion to Reverse, with all of its defaults documented, and its vacating of the brief deadline.
Therefore it is the UCBR who is not complying, due to their inappropriate filing for a Motion to Dismiss the Petitioner’s Appeal instead of complying with the procedure of response to the Motion to Remand;
“A response shall be filed within 20 days after the motion is filed. The response shall include a proposed order of remand that identifies the ineffectiveness claims and specifies the factual issues relevant to EACH such claim to be addressed by the trial court in the event Remand is granted, unless the responding party accepts that proposed by the moving party. Any reply shall be filed within 10 days after the response is filed.” – Rule 23B Section (B) Paragraph 2.
6. UCBR: ” On October 25, 2004, Petitioner requested the Board forward the hearing transcript of the employer’s testimony from the hearing of April 21, 2004.”
REPLY: Prior to the July 21, 2004 decision, by the UCBR, a telephone request for records was made. On July 29, 2004 a written request for ALL RECORDS was delivered and no response was received. By the deadline of October 12, 2004, Brief had to be submitted and compiled without the full record of the hearing, which was imperative to its efficient completion. This is a serious default, as cited, with references, in the Appellants Motion to Remand or Reverse with Prejudice/ Plus Addendum. On October 25, 2004, Appellant submitted the THIRD not FIRST request for all records.
7. On October 26, 2004, a prompt response was made to the third request by, Gerard Mackarevich, Deputy Chief Counsel, as stated in reply item #4 of this document, but he only forwarded a copy of the transcript and 1 exhibit of the employer (the only exhibit of the employer, according to the transcript.) On page 2 of the transcript was dialog referring to documents #1 through #31 being entered into the record. Discussion of this was expanded in the appellants Motion to Reverse. None of these documents were ever forwarded and they held significance because they were already present, in the file, before the employer arrived and were not delivered by her, quoted from or mentioned by her during her testimony, as evidenced in the transcripts.
On November 3, 2004 a FOURTH request was submitted to the UCBR, with a time is of the essence status, pending the November 12, 2004 deadline for brief. NONE was received. UCBR DEFAULTED, again, in neglecting to make a timely response to requests for ALL RECORDS.
8. UCBR: “ON or about November 12, 2004, Petitioner filed a Motion to Remand or Reverse with Prejudice (Motion) with this court, purportedly requesting a remand or reversal due to lack of timely release of records that are imperative to the preparation of her brief.”
REPLY: The FACT is; on November 8, 2004, NOT November 12, 2004, appellant had still received NO RESPONSE to the FOURTH request for ALL RECORDS. This was not a “purported” default but a serious obstruction to the efficient preparation of brief. The absence of a timely response, for the forwarding of the required documents, prompted the November 8, 2004, filing of the 9 page Motion of Remand or Reversal with Prejudice.
On November 10, 2004, appellant also filed a 7 page Addendum to that motion, providing a combined total of a 16 page Motion that revealed a wider view of the tragedy and proportionate number of victims that are being made homeless and losing entire households of possessions and property, due to these procedural spans, defaults and delays. If appeals are not resolved and UC Funds delivered to the claimants within 30 days, the claimant is vulnerable to an eviction on rental property, and if not resolved and delivered within 90 days, to a home-owner, they are facing mortgage foreclosure.
The staff of UCBR, as well as this honorable court must open their eyes; to the massive crisis the UCBR is creating by erroneously and illegally denying UC Benefits. By the UCBR’S own admission, they deny 100 to 200 appeals PER DAY.
That’s 24,000 to 48,000 victims PER YEAR, that they are responsible for, by imposing on them, the vulnerability of having their only source of income cut off and becoming homeless!
The UCBR has not been complying with the purpose it was created for. It is responsible to; investigate, correct and resolve errors as quickly as possible by using all the non-prejudice evaluating processes, that are fair and just and legal according to all Federal Civil Rights Laws, Pa State Laws, UC Department Laws, and UCBR Tribunal policies, that are recognized as acceptable within their own department, as well as beyond themselves, to the superior authorities, that they are also obligated to be compliant with, in their policymaking and practices.
The referees are over-burdened with appeals from employers who are hiring profit service-contract companies to appeal EVERY single ELIGIBLE Determination. These companies MUST be removed from the arena, as they have no association as legal counsel or acceptable witnesses who can present testimony or evidence. I expounded on this, in more detail, in the Motion to Reverse. I sympathize with the staff of the UC Department, including the referees and the Tribunal. But the over-load they are burdened with, they have created themselves, by giving hearing scheduling to frivolous appeals that are being made, in order that the employer can avoid payment as required, to the State UC Fund. These problems cannot be resolved by prejudicing the claimants, by denying benefits, where no willful misconduct has been claimed by the employer in the initial fact-finding inquiry, just to expedite the over-load of cases out the door, where it was not the fault of the claimant that they were over-loaded and where the staff from the UC Department already determined them as ELIGIBLE. Why would they schedule a hearing for an appeal where the employer already denied willful misconduct in the initial fact-finding inquiry? They shoot themselves in the foot and create the over-load by permitting the unpermittable. The employer cannot waste the referee’s time or put the UC Benefits of the claimant in question for the purpose of appealing his own initial testimony.
If the UCBR developed non-prejudice policies and procedure, supervised and followed-up on the decisions of the referees, the caseload of error, coming to them, would be drastically reduced, just by having the referee abide by the non-prejudice policies that must conform to the right of due process and the right to a fair hearing.
Their reluctance to grant continuances, to avail claimants the fair opportunity to completely voice all their testimony and present evidence, is causing the incompleteness that results in upward assigning and continuance, where the claimants are not receiving due process from the referee decisions. They CANNOT refuse continuances to claimants because too many employers have jammed their calendar with frivolous appeals. They pacify the request of the employer but not the claimant. This is clearly prejudice. They are devaluating the claimant and minimalizing the importance of their Civil Rights, their Right to a Fair Hearing and the importance and relevance of their testimony.
10. UCBR: (these statements are a perfect example, of the practice, of shoving the priorities and defaults under the rug and attempting to slide the testimony, of the claimant, out the door before anyone chances to hear or pay attention to them) Quote item # 10 in portions; ” To the extent the court considers Petitioner’s Motion and Addendum to be her amended Brief, these lack a statement of the scope of review and standard of review, statement of the questions involved, summary of argument, argument and conclusion…. Wherefore , Petitioner, having failed to comply with this court’s order, dated October 12, 2004, to file an amended Brief…… and the petitioner’s Motion and Addendum being non-responsive ….(???)…..Respondent moves that your honorable Court dismiss Petitioner’s appeal…..Wherefore, petitioner, having failed to state grounds upon which relief can be granted……. (???)….and Respondent, having complied with the Petitioner’s request for a copy of the referee’s hearing transcripts of April 21, 2004, Respondent moves that your honorable Court deny Petitioner’s Motion and Addendum…..”.
REPLY: the UCBR has clearly resorted to false statements, incorrect information and non-compliance with procedure. Also, in the attempt to over-step and erase the defaults proven in the appellant’s Motion to Remand or Reverse with Prejudice/ plus Addendum, Respondent has failed to give any viable explaination or retort to several documented issues, including the employers initial fact-finding statements and their transcribed hearing testimony, that willful misconduct was NOT the reason for termination, the missing 34 page letter of request for reconsideration that was not appended to the record and possibly more missing material of testimony, presented by the appellant, or they would not consider that these blatent false statements could be found believable if ALL the evidence and testimony are available for evaluation. “Wherefore, Petitioner, having failed to state grounds upon which relief can be granted…..” Where are the pages listing all this material if this Respondent believes they have not been presented? It is obviously a rouse to avoid admitting that serious mistakes were made and Immediate Reversal of their Illegal Decisions can be the only recourse possible for this Honorable Court to proceed with, having in its philosophies founded on a more ethical standard of practices than these being resorted to by the Respondent. Therefore, the Appellant moves that this honorable and ethical Court deny the Respondents Motion to Dismiss the Petitioner’s Appeal, and further moves that the Appellant be granted an immediate reversal of all decisions that denied UC Benefits with prejudice.
In conclusion, UCBR counsel, having the disadvantage of arriving late in these proceedings, and to be liberal, may not have been privy to the entire record of testimony and the chronology of evidence presented by the Appellant, is unfortunately lacking an awareness and insight of the urgency of the need for immediate Reversal and disbursement of UC Funds to legally ELIGIBLE claimants. Please review the list of 17 personal tragedies that are suffered within 30 days of a referee’s denial, listed on page 6 of the Appellants Motion to Reverse.
This is not a time to “save face”, but an opportunity to “man up” and admit honorably that errors have been discovered, many victims have been left homeless, many lives are being destroyed by these merry-go-round delay tactics and policies. Yes, the claimants do eventually go away and leave you alone. They are forced to leave the state, those who survive alive. But these were never the stereotypical images you are holding of hoboes who are too lazy to work. These are people who have worked hard all their lives. Some have degrees, own their own homes and serve on community boards. These are people who were employed full-time, very recently. But in an alarming number of cases, they have been unjustly severed from the workplace through a common practice of deception, slander and framing innocent employees in order to dishonestly lay the groundwork for false statements of “just cause” for termination in order that the employer might avoid UC Benefits payments. These are people who have even been more adept and efficient at doing their job than their supervisors and were viewed as a threat. Therefore the groundwork is laid down to get rid of them “with just cause”.
They never deserved to loose their jobs, and now you impose on them homelessness, starvation, banishment and possibly death.
Read my lips. A State, a city, a country cannot survive the budgets required when there are no citizens paying taxes or having consumable income. Everyone and everything is affected by negative, unethical, uncaring, uncompromising policies and practices that would obstruct consumable incomes to the citizens. These are good people being abused.
Please STOP THE ABUSE.
Current Contact Info:
P.O. Box 2315 Pittsburgh, Pa 15230-2315
(Old Original Contact Info-see below):
P.O. Box 643
Lancaster, Pa. 17608 (no phone anymore – dependant on free Library computer access)
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LETTER TO MACAREVICH, ATTY FOR PA STATE:
Dawn M. Naret’
P.O. Box 643
Lancaster, Pennsylvania 17608
Gerard Mackarevich, Deputy Chief Counsel
Unemployment Compensation Board of Review
10th floor Labor and Industry Bldg.
Harrisburg, Pennsylvania 17120
November 14, 2004
On October 25, 2004, I sent a repeat request for records on case no. 1742 CD 2004. You very kindly and very promptly intervened and responded to that request in the absence of Clifford Blaze, Esquire, but you did not send me ALL the records.
Unfortunately, I have reached an end of available waiting time and have submitted a Motion to Remand or Reverse with Prejudice (you’re welcome J) to the Commonwealth Court of Pa, on November 10, 2004.
I also attempted to send you a copy of the correspondence, for Certificate of Service, since I have not been informed of exactly whom, if not yourself, is assuming full duties of the absent Attorney Blaze.
The mailing was returned to me, with refusal to forward it to you. I then faxed it to your fax number listed on your letterhead.
Today, I am mailing you a copy of an Addendum to that Motion. I chose to expand on some dialog.
Again, I thank you, very much, for your intervention and assistance in bringing this case to a long over-due completion.
Dawn M. Naret’
LETTER TO PROTHONOTARY:
Dawn Naret’, Attorney, Pro Se
P.O. Box 643
Lancaster, Pa 17608-0643
Commonwealth Court of Pa.
Office of the Prothonotary
Irvis Office Bldg. – Rm. 624
Harrisburg, Pa 17120
Atten: Mr. Daniel R. Schuckers, Esquire
Regarding: Appellants 11/8/04 Motion to Remand or reverse with Prejudice and 11/10/04 Addendum to be appended to that Motion.
CASE: Dawn Naret’ v. UCBR
No. 1742 CD 2004
Dear Mr. Schuckers,
I was awaiting a response, from the UCBR office, within the required 20 days, to the Motion to Remand or Reverse with Prejudice, filed by me 11/8/04, (prior to the 11/12/04 dead-line for brief submission).
What I received is a partial response to only a few items of contention that prompted the Motion. I can only be liberal to the UCBR and assume that they have given a timely response to that Motion with their 11/24/04 communication, stated in the form of a request for Motion to Dismiss the Appeal of the Petitioner. (???)
It is an unusual response, considering the evidence presented in the Motion to Remand or Reverse with Prejudice/plus Addendum. I am very certain that a dismissal would be, without a doubt, a very serious violation of all laws, codes and procedures that they are obligated to comply with.
Their denial of Due Process was one of the contentious issues and the illegal denial of benefits, where willful misconduct was not proven or stated by the employer, relegate this case beyond the possibility of legal dismissal.
Therefore, I am submitting an OPPOSITION TO THE MOTION TO DISMISS PETITIONER’S APPEAL and also requesting that the justification of this opposition be summarized in my permissible REPLY TO THEIR RESPONSE, as I am submitting it within the required 10 days and I am willing, as I said, to be liberal as to the venue of their 11/24/04 communication.
I hold no negative opinions toward any of the staff currently focusing on this case. I am fully aware of the difficulties they have encountered with staff replacements and various other cogs in the wheel.
I consider myself fortunate that Mr. Gerard Mackarevich, Deputy Chief Counsel and Ms. Janet M. Tarczy, Assistant Counsel, should have been willing to come in on this problem situation at such a late date.
I have addressed the Certificate of Service to both or either Mr. Mackarevich or Ms. Tarczy, since I have not been told whom to consider the official replacement of Attorney Clifford Blaze, who left in August 2004.
There has been, repeated lack of communication as well as misinformation that created an unfair tragedy including now; eviction and homelessness, due to the illegal withholding of UC benefit funds.
Because of the situation advancing to such an intensely serious miscarriage of justice, I must beg your compassion and assistance in expediting the reversal and release of UC funds immediately. I have no phone either, and cannot continue to accomplish these necessary clerical communications and requirements.
It is not an incompetence on my part, it is an injustice that I should be required to suffer through so much difficulty to receive what I am already entitled to and was already approved for, before the referee erred in her judgment and knowledge of the UC Law.
I can be contacted by e-mail at:
Thank you and regards,
P.O. Box 643
Lancaster, Pa 17608
(No phone no.)