          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jodi A. Fowler,                         :
                         Petitioner     :
                                        :
            v.                          :   No. 1269 C.D. 2017
                                        :   Submitted: March 16, 2018
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                        FILED: May 15, 2018


            Petitioner Jodi A. Fowler (Claimant) petitions for review of an order of
the Unemployment Compensation Board of Review (Board). The Board affirmed
the Unemployment Compensation Referee’s (Referee) decision, denying Claimant
unemployment compensation benefits pursuant to Section 402(b) of the
Unemployment Compensation Law (Law).1 For the reasons set forth below, we
affirm.
            Claimant filed for unemployment compensation benefits subsequent to
her discharge from employment with JM Rapp, LLC (Employer). The Scranton UC


      1
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(b).
Service Center (Service Center) determined that Claimant was eligible for
unemployment compensation benefits.          (Certified Record (C.R.), Item No. 5.)
Employer appealed the Service Center’s determination, and a Referee conducted a
hearing. Claimant testified on her own behalf and presented the testimony of her
husband, Kevin Hengst (Hengst), who was her boyfriend at the time of her
termination. Jeffrey Rapp (Rapp), owner of Employer, testified on Employer’s
behalf.
             Rapp testified that Claimant worked full-time as a Dispatcher for
Employer. (C.R., Item No. 9 at 5.) Claimant began working in 2014, with her last
day being March 13, 2017. (Id.) Rapp explained that Claimant’s duties included
taking phone calls from drivers at night or on the weekends when issues related to
dispatch arose. (Id. at 6-7.) On March 11, 2017, one of Employer’s drivers
contacted Claimant early in the morning. (Id. at 7.) The driver received a text
message response from Claimant “telling him to break out of calling at 5:00 in the
morn-, in the F-ing morning.” (Id.) According to Rapp, Hengst sent the text from
Claimant’s phone. (Id.) Later that day, another driver attempted to contact Claimant
and received “the same type of inappropriate text message” from Hengst. (Id.)
             Rapp stated that Claimant previously shared her personal phone
number with the drivers in case they had an issue with something related to dispatch.
(Id.) Employer permitted Claimant to track her time spent answering these types of
phone calls so she could be compensated. (Id.) On March 13, 2017, Rapp contacted
Claimant at the office and informed her that the texts sent from her phone were
inappropriate. (Id. at 8.) He instructed her to go home and have a conversation with
Hengst about the texts. (Id.) Rapp further instructed Claimant to call him at the end




                                         2
of the day about what she intended on doing. (Id.) Rapp stated that Claimant went
home, but she never called him back. (Id.)
               Rapp testified that on March 15, 2017, he received a note from
Claimant’s doctor stating that Claimant would not return to work until
March 20, 2017. (Id.) Rapp stated he had still not heard back from Claimant at this
point. (Id.) Rapp testified that he later received a request for leave under the Family
and Medical Leave Act2 (FMLA), through which Claimant sought a six-week leave
of absence from work. (Id.) Rapp informed her that FMLA did not apply because
Employer had less than 50 employees. (Id.) Rapp stated that he received a text from
Claimant on March 22, 2017, stating that she was waiting on Employer’s reply about
medical leave, that she went to counseling, and that she was going to return her keys
the next day. (Id. at 8-9.) Rapp stated that if Claimant would have gone home on
March 13, 2017, straightened things out with her boyfriend, and returned to work,
she would still be employed. (Id. at 9.)
               At this point in the hearing, the Referee remarked that the Service
Center rendered its determination under Section 402(e) of the Law,3 relating to
willful misconduct. (Id.) The Notice of Hearing, however, listed Section 402(b) of
the Law, relating to voluntary discharge, as the pertinent issue. (Id.) Accordingly,
the Referee sought permission from both parties to consider both sections in making
her decision. (Id. at 9-10.) Both parties consented. (Id.)
               Claimant testified that March 13, 2017, was her last day of employment
because Employer told her to leave. (Id. at 11.) She reiterated that Employer sent
her home that day to discuss the text messages with Hengst and to consider whether

      2
          29 U.S.C. §§ 2601-2654.
      3
          Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,
43 P.S. § 802(e).
                                           3
she still wanted to work for Employer. (Id.) Claimant disputed the threatening
nature of the texts. (Id.) Claimant testified that she sent Employer a text on
March 13, 2017, and she left a voicemail when Employer did not reply. (Id.) She
informed Employer that she was “sick to her stomach and upset about being sent
home” and that she would not be in the next day. (Id.)
             Claimant testified that she texted Employer on March 14, 2017, to
inform him that she was still feeling sick. (Id. at 12.) She stated that Hengst tried
to call Employer, but Employer hung up on him. (Id.) Claimant testified that she
did not call Employer or want to speak to him personally because of her nerves and
Employer’s intimidating nature.      (Id.)       On March 22, 2017, Claimant texted
Employer and informed him that she was still waiting on his reply about her medical
leave request and that she had her first counseling session. (Id.) She stated she also
told Employer that she would return her keys. (Id.) Claimant testified that Employer
texted her on March 20, 2017, stating that she could pick up her paycheck after she
turned in her keys. (Id.) She said that she believed Employer was terminating her
employment because she had to turn in the keys to get her check. (Id. at 13.)
Claimant stated that she did not return to work on March 20, 2017, because her
doctor intended to file for FMLA leave on Claimant’s behalf. (Id. at 14.) At that
time, Claimant stated she was not aware that Employer was not required to offer
FMLA leave. (Id.) Claimant noted that although she asked Employer to grant
medical leave, she did not provide any documentation to support this request. (Id.)
             Hengst testified as to whether he sent threatening text messages. He
testified as follows:
             [Hengst]: Jodi, the only thing that I sent was when I got
             woken up at 4:45 AM on a Saturday morning. They
             should not contact this phone until a decent hour. And I
             did use, I did use the F-word in the sentence. And I was
                                             4
             quite upset because I only got off of work at 2:30 in the
             morning and got to bed about 3:30. And, yeah, I was quite
             upset being woken up. And the first – it’s not the first time
             that it happened. One month it happened 61 times, the
             phone rang 61 times. So that, that – I was quite upset and
             I did, I did send a text message. Was not threatening, just
             telling them to call back at a decent time, like, 8:00.
             C[laimant]: The text message to Lenny, that did not occur
             on the same day, correct?
             [Hengst]: Oh, yeah. That’s correct. It did not occur on
             the same day. He was, was sending, was sending photos
             of himself to you and, and I, I thought it was inappropriate
             and it was, I believe it was the day before that. It wasn’t
             the same day though, ‘cause that was the only one that was
             made that day. And you know, explicit parts of, well, I
             didn’t know. But I didn’t care for it. But the other phone
             call was actually by Jeff Rapp that Saturday morning at
             5:30 AM, it was. It was 5:30, 5:31AM and, you know,
             calling to conduct work business, and you know, I—it’s,
             it’s incredible the times that, that the company and these
             drivers called. It . . .
             R[eferee]: Okay.
             [Hengst]: It was unbearable at times.
(Id. at 16-17.)
             In closing, Employer stated that the situation was blown out of
proportion and that his company suffered as a result of Claimant leaving. (Id. at 18.)
Claimant stated that she believed Employer was retaliating because of sexual
harassment charges she filed. (Id.)
             Following the hearing, the Referee issued a decision and denied
Claimant unemployment compensation benefits pursuant to Section 402(b) of the
Law. In so doing, the Referee made the following relevant findings:
             1.    The Claimant was last employed full[-]time as a
                   Dispatcher by JM Rapp LLC from 2014 at a final
                   rate of pay of $15.00 an hour until her last day of
                   work on March 13, 2017.

                                          5
2.    Due to the nature of her job, during her
      employment, the Claimant took calls from drivers
      at home at night and on weekends.

3.    The Claimant gave the drivers her personal cell
      phone number and had the drivers’ numbers listed
      in her cell.

4.    The Claimant told the Employer that she was awake
      at 4:30 AM and that drivers could call after that
      time.

5.    The Employer told the Claimant that she should
      track her time spent on calls made to her home and
      turned [sic] it in with her pay sheet in order to be
      compensated for the time.

6.    On March 11, 2017[,] at approximately 5:00 AM, a
      driver attempted to contact the Claimant at home on
      her cell phone.

7.    [Hengst] sent a text message back to the driver on
      the Claimant’s phone saying not to call at 5:00 AM,
      using the F-word.

8.    [Hengst] sent a similarly worded text message to
      another driver on or around the same time.

9.    On March 13, 2017, the Employer told the Claimant
      that it was inappropriate for [Hengst] to
      communicate with the drivers.

10.   The Employer told the Claimant if she had an issue
      with the drivers calling her at home she should have
      discussed it with him in the office.

11.   The Employer instructed the Claimant to go home
      and straighten out the issue with [Hengst] and to call
      him back at the end of the day.



                            6
            12.    The Claimant notified the Employer that she would
                   not be into work on March 14, 2017[,] because she
                   was sick to her stomach.

            13.    On March 15, 2017, the Employer received a faxed
                   doctor’s note restricting the Claimant from work
                   until March 17, 2017, indicating that the Claimant
                   was released to work on March 20, 2017 with no
                   restrictions.

            14.    The Claimant did not return to work on
                   March 20, 2017.

            15.    The Employer also received a request for a medical
                   leave of absence under the Family [and] Medical
                   Leave Act (FMLA) but as the Employer has less
                   than 50 employees, FMLA is not applicable.

            16.    The Claimant voluntarily quit her employment.

            17.    Continuing work was available to the Claimant.

            18.    The Referee granted the Claimant’s request to
                   participate by the telephone in the Referee’s
                   hearing.

            19.    The Notice of Hearing sent to the parties on
                   May 30, 2017 included the Regulations Governing
                   Telephone Hearings with instructions on submitting
                   any documents to be entered or testified from at the
                   hearing to the Referee[’s] Office at least five days
                   before the hearing.

            20.    No documents from either party were submitted to
                   the Referee’s Office prior to the hearing.
(C.R., Item No. 11.)
            Although the Service Center decided Claimant’s eligibility for benefits
under Section 402(e) of the Law, the Referee adjudicated the claim under




                                         7
Section 402(b) of the Law based on the testimony presented at the hearing. (Id.)
The Referee reasoned:
             In this case, both parties agree that the Employer sent that
             [sic] Claimant home on March 13, 2017 to discuss with
             [Hengst] why it was inappropriate for him to respond to
             the drivers contacting the Claimant with work issues.
             Both parties agree that the Claimant reported off from
             work on March 14, 2017 because she was sick to her
             stomach. The Employer credibly testified that he received
             a doctor’s note by fax restricting the Claimant from
             working through March 17, 2017, allowing the Claimant
             to return to work with no restrictions on March 20, 2017.
             The Claimant did not return to work on March 20, 2017 or
             thereafter. Both parties agree that the Claimant’s doctor
             send [sic] forms to the Employer about leave under the
             Family [and] Medical Leave Act (FMLA) but FMLA does
             not apply to the Employer due to its small size.
             However, the Claimant asserts that she was discharged by
             the Employer while the Employer asserts that the Claimant
             voluntarily quit her employment. Both parties attempted
             to provide testimony regarding multiple text messages sent
             back and forth between the parties from March 13, 2017
             through March 22, 2017. The Claimant did not return to
             work on March 20, 2017 or thereafter.

(Id.) The Referee further reasoned that, because there was a conflict as to the reason
for Claimant’s separation, Claimant had the burden to show that the separation was
not voluntary. (Id.) The Referee concluded that Claimant failed to meet this burden.
Instead, Claimant voluntarily quit her employment while continuing work was
available to her. The Referee considered whether Claimant established a necessitous
and compelling reason for leaving her employment. The Referee concluded that
Claimant had not, because she offered no reasons for quitting her employment, and
she asserted only that Employer discharged her from her employment. (Id.) The
Referee, therefore, reversed the Service Center’s determination and denied Claimant
benefits under Section 402(b) of the Law. (Id.)
                                          8
              Claimant appealed the Referee’s decision to the Board, and the Board
affirmed the Referee’s decision. (C.R., Item No. 16.) The Board adopted and
incorporated the Referee’s findings of fact and conclusions of law. (Id.) The Board
also denied Claimant’s request for a remand hearing and for reconsideration of the
Board’s decision. (Id.)
              On appeal,4 Claimant argues that the Board erred in denying her request
for a remand hearing and for reconsideration. She also argues that the Referee
violated her due process rights by (1) failing to advise Claimant of the opportunity
for her to have an in-person hearing and (2) engaging in favoritism towards
Employer and bias against her. Claimant does not challenge the merits of the
Board’s decision.
              We first address Claimant’s argument that the Board erred in denying
her request for a remand hearing and for reconsideration. By Notice of Hearing sent
on May 30, 2017, the Board informed Claimant of her responsibility to submit
documents to the Referee’s office at least five days before the hearing.
(C.R., Item No. 8.)       Along with the Notice of Hearing, the Board included a
document entitled “Important Information About This Hearing,” which set forth
various regulations governing telephone hearings, including the regulations set forth
at 34 Pa. Code §§ 101.130(e) and 101.131(h).5 As explained by the Referee, those

       4
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence.       Section 704 of the Administrative Agency Law,
2 Pa. C.S. § 704.
       5
         34 Pa. Code § 101.130(e) provides:
       When any testimony will be given from or with the aid of a document not
       previously distributed to the parties by the tribunal, the party expecting to introduce
       the document shall deliver it to the tribunal, and the tribunal shall distribute it to
       each other party and, if known, counsel or authorized agent before or at the


                                                 9
regulations require parties to send documents to the Referee five days before the
hearing if the party wants to introduce documents into the record or testify from the
documents. (C.R., Item No. 9 at 4.) When Claimant testified, she discussed text
messages not entered into the record. (Id. at 13.) The Referee stopped her and again
explained that testimony from documents is permitted only if the documents were
entered into the record five days before the hearing. (Id.) This dialogue followed:
              C[laimant]: Actually, actually I attempted to send it to you
              10 days ago. And I had the, the email address, because of
              it being case sensitive, I sent it incorrectly. I actually sent
              it to you yesterday.

              R[eferee]: Well, if you, if you sent it to my office
              yesterday, the clerk would have printed it out and given it
              to me. So, and again, it had to be 5[]days before the
              hearing.

              C[laimant]: I know. I know and that’s a mistake on my
              part. It did not have the case sensitive. And I realized that
              and that’s why I sent it to you yesterday again.

              R[eferee]: Okay.

              C[laimant]: So I do, I do have the hard copies.

              R[eferee]: Well, you can’t, again, you shouldn’t even be
              testifying from that because they’re not in the record. So
              saying that you have hard copies isn’t helping, helping me

       beginning of the testimony. The tribunal may require that the documents be
       delivered up to 5 days in advance of the hearing. See § 101.131(h) (relating to
       conduct of a telephone hearing).
34 Pa. Code § 101.131(h) provides:
       A document not provided as required by § 101.130(e) (relating to notice of
       testimony by telephone and use of documents) may not be admitted nor testimony
       given or taken from it unless consent has been requested from and given by all
       parties. Testimony taken or given in violation of this subsection will be excluded
       from consideration, as will the document.

                                              10
             here. All right. So you’re saying that you were discharged
             by Mr. Rapp?

             C[laimant]: Yes, I was.
(Id. at 13.) The Referee allowed both Claimant and Employer to testify about texts
sent, but the Referee also acknowledged that both parties failed to comply with the
regulations about telephone hearings in the Notice of Hearing. (Id.) Claimant
emailed the Referee on June 14, 2017, at 2:13 p.m., requesting that the Referee
“re-open” her case. (C.R., Item No. 10.) She explained that she emailed her
evidence in a timely manner, but in the incorrect format. (Id.)
             The Notice of Hearing put Claimant on notice that if she wished to offer
testimony based on evidence or with the aid of a document not previously distributed
to the parties, she could only do so (1) upon consent of the party or (2) if she
delivered the document to the Referee and opposing party five days prior to trial.
During the hearing and in her subsequent email to the Referee, Claimant admitted
that she made a mistake when she sent the evidence to the Referee’s office.
Claimant’s failure to send the evidence in a timely manner did not entitle her to a
new hearing. For these reasons, the Board did not err in denying Claimant’s request.
             Next, we address Claimant’s argument that the Referee violated her due
process rights by failing to advise Claimant of her ability to participate in person at
a hearing.    On May 25, 2017, Claimant emailed the Referee requesting a
continuance. (C.R., Item No. 8.) She also requested a telephone conference because
of her sexual harassment lawsuit against Employer. (Id.) She wrote, “[p]lease
consider my request as I can not [sic] have any face[-]to[-]face interaction with . . .
Rapp due to his devious actions of abuse and harassment.” (Id.) Claimant’s husband
also sent a letter to the Referee, referencing the sexual harassment lawsuit and



                                          11
describing Claimant’s health state as a result of dealing with Rapp. (Id.) The
Referee granted these requests. (Id.)
             Claimant’s argument is unclear. The Notice of Hearing initially sent to
Claimant informed her that the hearing would be held in-person. Claimant instead
requested a telephone conference, because she did not want to have a
“face[-]to[-]face interaction” with Rapp. In this respect, Claimant waived any right
to an in-person hearing. We conclude, therefore, that Claimant’s argument is
without merit
             Next, we address Claimant’s argument that the Referee’s favoritism
towards Employer during the hearing violated her right to a fair hearing and
prejudiced her. Claimant argues that she was prejudiced because the Referee
accepted Employer’s verbal testimony without challenging his statements and
refused to guide her as a pro se party. Claimant further argues that the Board failed
to acknowledge the Referee’s bias and prejudice.
             Claimant points out that the Referee defined the meaning of a witness
as “someone who has first-hand knowledge about the events leading up to your
separation,” before questioning whether Hengst had such first-hand knowledge.
(C.R., Item No. 9 at 2.)     Claimant argues that the Referee began speaking
“arbitrar[ily] and capricious[ly]” and that the Referee’s demeanor changed when
speaking to Claimant. (Claimant’s Br. at 7.) Claimant argues that the Referee was
mild-mannered in her questioning of Employer, did not challenge Employer’s
statements, and did not “get loud” with Employer. (Id. at 7A.) Claimant asserts that
the Referee did not “state to [E]mployer what [Employer] will and what [Employer]
will not do at her hearing.” (Id.) Claimant contends that she was prejudiced because




                                         12
the Referee challenged her statements and tried to confuse her.             Claimant
characterizes the Referee’s questioning of her as “badgering.” (Id.)
             After reviewing the transcript, this Court concludes that the Referee did
not act in a manner that exhibited bias or prejudice towards Claimant. Claimant is
correct that a referee is required to assist “pro se claimants in developing the facts
necessary for a decision.”      Procito v. Unemployment Comp. Bd. of Review,
945 A.2d 261, 264 (Pa. Cmwlth. 2008). “[T]he referee [, however,] is not required
to become and should not assume the role of a claimant’s advocate.” McFadden v.
Unemployment Comp. Bd. of Review, 806 A.2d 955, 958 (Pa. Cmwlth. 2002). The
Referee attempted to help Claimant develop facts, but Claimant sometimes
discussed her own personal opinion. When questioning Employer, Claimant also
failed to ask questions. The Referee explained the law to both parties. Furthermore,
before allowing Hengst to testify, the Referee explained to Claimant the function of
a witness to Claimant. There is no evidence that the Referee acted unfairly towards
Claimant. For these reasons, the Referee did not deny Claimant a fair hearing.
             Accordingly, we affirm the Board’s order.




                                          P. KEVIN BROBSON, Judge




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jodi A. Fowler,                       :
                       Petitioner     :
                                      :
            v.                        :   No. 1269 C.D. 2017
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


            AND NOW, this 15th day of May, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
