         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Olexander Dobryk,                             :
                                              :
                     Petitioner               :
                                              :
              v.                              : No. 364 C.D. 2016
                                              : Submitted: November 4, 2016
Unemployment Compensation                     :
Board of Review,                              :
                                              :
                     Respondent               :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                        FILED: February 24, 2017

              Olexander Dobryk (Claimant) petitions for review of the August 31,
2015 order of the Unemployment Compensation Board of Review (Board). In its
decision and order, the Board adopted and incorporated findings and conclusions
made in the Referee’s June 22, 2015 decision, and affirmed the Referee’s decision
and order, which concluded that Claimant was ineligible for unemployment
compensation benefits under Section 402(b) of the Unemployment Compensation
Law (Law)1 because he had not demonstrated a cause of a necessitous and
compelling nature for leaving his employment with ARG Management Inc.

1
 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Section 402(b) of the Law provides, in relevant part, that an employee shall be ineligible for
compensation for any week in which his or her unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.
(Employer) on December 8, 2014. Before this Court, Claimant argues, inter alia,
that his right to due process was abridged by the Referee and that the Board
committed an error of law in affirming the Referee’s decision and order. We agree
and we vacate the order of the Board and remand with instructions to issue a new
determination with respect to whether Claimant voluntarily quit because he failed
to report to work between November 20, 2014 and December 1, 2014. 2
              Claimant filed for unemployment compensation on January 18, 2015.
(Record Item (R. Item) 1, Claim Record.)                 Employer submitted separation
information to the Department of Labor and Industry (Department), stating that
Claimant quit and had been a no call/no show. (R. Item 2, Employer Separation
Information.) On April 15, 2015, the Department issued a Notice of Determination
containing the following findings of fact:


              1. The Claimant was last employed on 12/5/2014.

              2. There was a conflict between whether the Claimant
              quit or was discharged.

              3. The Claimant voluntarily quit because he failed to
              report to work between 11/20/14 through 12/1/14.

              4. There was a reasonable expectation that the Employer
              could have provided an alternative to resolve the
              situation.

              5. The Claimant did not inform the Employer of the
              reason for leaving.

2
  In an unemployment compensation appeal, this Court’s scope of review is limited to
determining whether an error of law was committed, whether constitutional rights were violated,
or whether necessary findings of facts are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. § 704; Diehl v. Unemployment Compensation Board of
Review (ESAB Group, Inc.), 57 A.3d 1209, 1216 (Pa. 2012).
                                               2
            6. The Claimant denies all allegations about being absent
            or late to work.


(R. Item 4, Notice of Determination, Findings of Fact (F.F.) ¶¶1-6.) Based on
these findings, the Notice of Determination informed Claimant that he was being
denied benefits under Section 402(b) Law. (Id., Determination.) The Notice of
Determination stated that, although Claimant had a necessitous and compelling
reason for voluntarily leaving his employment, Claimant had failed to sustain his
burden to show that he had exhausted all alternatives prior to leaving and was,
therefore, ineligible for benefits. (Id., Discussion.) The Notice of Determination
also informed Claimant of his right to appeal to the Referee.        (Id.,   Appeal
Instructions.) Claimant appealed. (R. Item 5, Claimant’s Petition for Appeal from
Determination with Attachments.)
            A hearing was held before the Referee on June 8, 2015. (R. Item 9,
Referee Hearing Transcript (H.T.).) At the hearing, Claimant appeared pro se and
testified with the aid of a Russian interpreter, Leonard Polis, from Action
Interpreting. (Id., H.T. at 1.) Delivery Manager, Gerald Reinert, testified for
Employer, and General Manager, Robert Gougler, appeared as an observer for
Employer, but did not testify. (Id., H.T. at 1-2.) At the hearing, Employer,
through the testimony of its witness, presented a new factual scenario as the basis
for Claimant’s separation from Employment. (Id., H.T. at 13-18.) Following the
hearing, the Referee issued a decision and order on June 22, 2015 concluding that
Claimant was ineligible for unemployment compensation pursuant to Section
402(b) of the Law. (R. Item 10, Referee Decision and Order.) The Referee’s




                                        3
conclusion that Claimant was ineligible for unemployment benefits was based on
the following findings of fact:


             1. For the purposes of this appeal [Claimant] was last
             employed as a full-time Parts Puller with ARG
             Management from October 20, 2012 until December 4,
             2014, his last day of work, at a final rate of pay of $10.50
             per hour.

             2. [Claimant] was injured in November 2014 and cleared
             to return to work effective December 1, 2014.

             3. [Claimant] took a vacation day on December 1, 2014.

             4. [Claimant] returned to work thereafter and worked his
             regular hours plus overtime hours on December 2, 2014
             and December 3, 2014.

             5. On December 4, 2014, [Claimant] left work at 12:06
             p.m., after completing only five hours of his scheduled
             shift.

             6. [Claimant] did not advise [Employer] that he was
             leaving early, although he asked a co-worker to tell
             [Employer] that he had to leave early.

             7. [Claimant] did not report to work on Friday,
             December 5, 2014.

             8. On Monday, December 8, 2014, [Claimant] reported
             to the work location in regular clothes, rather than his
             work uniform.

             9. On that date [Claimant] requested his check and stated
             that he was quitting his job.

             10. [Claimant] voluntarily left this employment.


                                          4
            11. [Employer] had continuing work available for
            [Claimant], had [Claimant] not voluntarily left this
            employment.

(Id., F.F. ¶¶1-11.) Additionally, the Referee did not find Claimant credible and
reasoned that “[Employer’s] witness testified that [Claimant] essentially walked off
the job on Thursday December 4, 2014, did not report for work on Friday,
December 5, 2015 [sic] and verbally stated his intention to quit his job on the
following Monday, December 8, 2014…There is no competent evidence in the
record to prove that [Claimant] voluntarily left this employment due to a cause of a
necessitous and compelling nature.” (Id., Reasoning.)
            Claimant appealed the Referee’s decision and order to the Board,
requesting that the Board reverse the Referee, or in the alternative, remand for an
additional hearing to permit Claimant to submit evidence disputing the new factual
scenario put forth by Employer as the basis for Claimant’s separation from
employment. (See R. Item 12, Claimant’s Brief (actually filed in the certified
record under R. Item 13, Board’s Response to Request for Transcript/ File Brief.).)
On August 31, 2015, the Board issued a decision and order affirming the Referee
and adopting and incorporating the Referee’s findings of fact. (R. Item 15, Board
Decision and Order.) In its decision, the Board stated:


            It is [Claimant’s] burden to prove the precise nature of
            separation. [Claimant] failed to provide competent
            evidence that he was discharged. The record does not
            contain sufficient evidence of necessitous and compelling
            reason to quit. [Claimant] had the opportunity to present
            witnesses during the initial proceeding, and failed to do
            so. [Claimant’s] request for a remand is denied.



                                         5
(Id.)
               Before this Court, Claimant argues that the Board’s order should be
reversed because he was denied due process by the failure of the Referee and the
Board to render a decision upon the issues expressly ruled upon by the Department
in the Notice of Determination.3
               In Sterling v. Unemployment Compensation Board of Review, 474
A.2d 389 (Pa. Cmwlth. 1984), we held that a claimant’s right to due process is
violated when a referee issues a decision based on facts that were not addressed by
the Department’s Notice of Determination and were instead raised for the first time
at a hearing before a referee. Id. at 390. We stated in Sterling that:


               It has long been accepted that the constitutional
               guarantee of due process of law is equally applicable to
               administrative proceedings as it is to judicial
               proceedings. Included in this concept of due process is
               the requirement that such notice must at the very least
               contain a sufficient listing and explanation of any charges
               so that the individual can know against what charges he
               must defend himself if he can. Thus notice is integrally
               linked to the right to be heard, for without notice,
               litigants are ill-equipped to assert their rights and defend
               against claims.




3
  The Board argues that Claimant waived this issue because Claimant did not explicitly raise lack
of due process in his brief to the Board. We reject this argument because lack of proper notice of
the basis for denying Claimant unemployment compensation benefits was subsumed within the
issues presented to the Board, particularly Claimant’s request in his brief for a remand to present
evidence contradicting the facts first raised by Employer for the first time before the Referee.
(See R. Item 12, Claimant’s Brief (actually filed in the certified record under R. Item 13, Board’s
Response to Request for Transcript/ File Brief.).)
                                                6
Id. (internal citations and quotations omitted). This principle is woven into the
rules of practice and procedure in unemployment compensation procedures, which
provide that when an appeal is taken from a Notice of Determination, “the
Department shall be deemed to have ruled upon all matters and questions
pertaining to the claim. In hearing the appeal the tribunal shall consider the issues
expressly ruled upon in the decision from which the appeal was filed.” 34 Pa.
Code § 101.87. This Court has recognized exceptions to the bar against addressing
issues beyond the scope of the Notice of Determination where the record reflects
the parties were prepared to address the issue, the parties affirmatively consented
to the broadened scope, and neither party was prejudiced.                 Brooks v.
Unemployment Compensation Board of Review, 547 A.2d 493, 495 (Pa. Cmwlth.
1988); see also 34 Pa. Code § 101.87 (providing additionally that “any issue in the
case may, with the approval of the parties, be heard, if the speedy administration of
justice, without prejudice to any party, will be substantially served thereby”). Such
was not the case here.
             Claimant appeared at the hearing with documentary evidence detailing
his work injury, medical treatment, and leave of absence during the period of
November 20, 2014 through December 1, 2014 identified in the Notice of
Determination as the basis for his ineligibility for unemployment benefits. (R.
Item 9, H.T. at 6, C1.) However, the Referee based the decision on events that
allegedly took place on December 2, 2014 through December 8, 2014. Claimant
had no notice that these events could form the basis for denying him
unemployment compensation.
             In its decision, the Board stated that Claimant had the opportunity to
present witnesses during the hearing before the Referee and failed to do so. We


                                         7
conclude that the Board erred. Claimant was clearly without notice that such
witnesses would be necessary and, while not determinative, both Employer and
Claimant testified that Claimant’s coworker was present with Claimant during the
events that allegedly took place December 2, 2014 through December 8, 2014 and
that he acted as an interpreter for Claimant at work.    (Id. at 11-12, 17-18.)
Whether or not Claimant would have chosen to call this coworker to offer
testimony to dispute Employer’s version of events, due process requires that
Claimant must be given the opportunity to do so and to otherwise defend against
any allegations that would serve as a basis to deny him unemployment
compensation benefits. The lack of proper notice of the grounds for denying him
unemployment benefits denied Claimant due process of law. Hanover Concrete
Co. v. Unemployment Compensation Board of Review, 402 A.2d 720, 721 (Pa.
Cmwlth. 1984).
            Accordingly, the order of the Board is vacated and we remand to the
Board for a new disposition based on whether Claimant voluntarily terminated
employment without a necessitous and compelling reason because he failed to
report to work from November 20, 2014 through December 1, 2014.




                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge




                                       8
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Olexander Dobryk,                       :
                                        :
                 Petitioner             :
                                        :
           v.                           : No. 364 C.D. 2016
                                        :
Unemployment Compensation               :
Board of Review,                        :
                                        :
                 Respondent             :

                                  ORDER

           AND NOW, this 24th day of February, 2017, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby VACATED and this matter is REMANDED to the Unemployment
Compensation Board of Review for a new determination with respect to whether
Claimant voluntarily terminated his employment without cause of a necessitous
and compelling manner because he failed to report to work between November 20,
2014 and December 1, 2014.
           Jurisdiction relinquished.




                                   __________ ___________________________
                                   JAMES GARDNER COLINS, Senior Judge
