           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berlin J. Theodore,                     :
                         Petitioner     :
                                        :
            v.                          :   No. 1977 C.D. 2016
                                        :   Submitted: April 21, 2017
Unemployment Compensation               :
Board of Review,                        :
                    Respondent          :



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                            FILED: July 31, 2017


            Petitioner Berlin J. Theodore (Claimant) petitions for review of an
order of the Unemployment Compensation Board of Review (Board), affirming a
Referee’s decision accepting Claimant’s withdrawal of appeal pursuant to 34 Pa.
Code § 101.55, pertaining to withdrawal or discontinuance of appeal, and
implicitly denying Claimant’s petition to re-open appeal. For the reasons set forth
below, we vacate the Board’s order and remand for further consideration in
accordance with this opinion.
            Claimant applied for unemployment compensation benefits on
May 8, 2016, after being discharged from his employment with the Department of
Defense/Logistics (Employer) on April 28, 2016. (Certified Record (C.R.), Item
No. 4.)   The Indiana Unemployment Compensation Service Center (Service
Center) issued a determination on July 1, 2016, finding Claimant ineligible for
benefits under Section 402(e) of the Unemployment Compensation Law (Law),1
relating to willful misconduct. (Id.) Claimant appealed the Service Center’s
decision on July 18, 2016, and the Board scheduled an evidentiary hearing to be
conducted by the Referee on August 8, 2016. (C.R., Item Nos. 5, 7.) Claimant
subsequently emailed the Referee on July 29, 2016, requesting to withdraw his
appeal.       (C.R., Item No. 8.)          The Referee issued a withdrawal order on
July 29, 2016, approving Claimant’s request for withdrawal of appeal pursuant
to 34 Pa. Code § 101.55. (C.R., Item No. 9.) Claimant filed a petition to appeal on
August 10, 2016, seeking to “restart [his] appeal,” which the Board treated as a
petition to re-open an appeal.                (C.R., Item No. 10.)             By order dated
September 8, 2016, the Board affirmed the Referee’s withdrawal order as proper.
(C.R., Item No. 11.) By order dated September 30, 2016, the Board vacated its
September 8, 2016 order due to a typographical error.2 (C.R., Item No. 12.)
Thereafter, on October 3, 2016, the Board issued a new order, again affirming the
Referee’s withdrawal order. (C.R., Item No. 13.) Claimant now petitions this
Court for review.
                 On appeal,3 Claimant argues that the Board’s decision violated his
procedural due process right to a hearing protected by the Pennsylvania

       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 802(e).
       2
           It appears that the error may have related to the decision number contained on the order.
       3
         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.

                                                  2
Constitution.     Claimant submits that, without a hearing, the Board could not
consider all relevant facts and evidence.
               The requirements of procedural due process are satisfied when a
petitioner is provided notice and the opportunity to be heard and defend in an
appropriate proceeding before an appropriate tribunal. Dep’t of Transp., Bureau of
Driver Licensing v. Clayton, 684 A.2d 1060, 1064 (Pa. 1996) (Clayton). The
opportunity to be heard and defend in an unemployment compensation proceeding
can be waived by withdrawing an appeal pursuant to 34 Pa. Code § 101.55. This
regulation allows “a party who has filed an appeal” to “withdraw it with the
approval of the tribunal before whom the appeal is pending.”                      34 Pa. Code
§ 101.55. This Court reviews the denial of a request to reinstate an appeal for an
abuse of discretion. See Neals v. City of Philadelphia, 325 A.2d 341, 343 (Pa.
Cmwlth. 1974). To determine whether the Board abused its discretion, we look to
whether the law is overridden or misapplied, or the decision “is the result of
partiality, prejudice, bias, or ill will.” Henderson v. Unemployment Comp. Bd. of
Review, 77 A.3d 699, 713 (Pa. Cmwlth. 2013). In so inquiring, we consider the
totality of the circumstances surrounding the Board’s decision. Id.
               Claimant submits that his procedural due process rights were violated
as a result of the Board’s order, citing Ortiz v. Unemployment Compensation
Board of Review, 481 A.2d 1383 (Pa. Cmwlth. 1984), in support. Claimant’s
argument is meritless, as Ortiz is readily distinguishable from Claimant’s case.4

       4
          In Ortiz, the petitioner did not voluntarily withdraw her appeal but rather appeared late
to a scheduled evidentiary hearing. Ortiz, 481 A.2d at 1384. With regard to situations where a
party fails to attend a scheduled hearing without proper cause, 34 Pa. Code § 101.51 provides:
       If any party duly notified of date, hour and the place of a hearing fails to attend
       without proper cause, the hearing may be held in his absence. In the absence of
(Footnote continued on next page…)
                                                3
Unlike in Ortiz, here the Referee provided Claimant with an opportunity to be
heard when the Referee scheduled the evidentiary hearing. See Clayton, 684 A.2d
at 1064.     Claimant voluntarily waived his opportunity to be heard when he
withdrew his appeal. See 34 Pa. Code § 101.55.
               We are, however, immediately faced with an impasse in our review of
the Board’s order for abuse of discretion. While Section 101.24 of the Board’s
regulation, 34 Pa. Code § 101.24, provides standards for reopening a hearing when
a claimant fails to attend a scheduled hearing,5 the Board’s regulations are silent in
the context of a reopen following voluntary withdrawal. If this were a workers’
compensation case, the law would require consideration of whether Employer
would suffer undue prejudice as a result of reopening the appeal. See Powell v.


(continued…)
       all parties the decision may be based upon the pertinent available records. The
       tribunal may take such other action as may be deemed appropriate.
We noted that 34 Pa. Code § 101.24 provides a procedure for reopening a hearing when a party
has proper cause for the failure to attend a hearing. The Court held that pursuant to 34 Pa. Code
§ 101.24, the Board erred in affirming the referee’s dismissal for nonappearance for three
reasons: (1) the referee and Board failed to afford the petitioner the opportunity to be heard as to
her late arrival; (2) the Board failed to append petitioner’s request to reopen the hearing to the
record so that it could be reviewed by the Board or Commonwealth Court on appeal; and (3) the
referee should have rendered a decision on the merits with findings of fact based on the evidence
of record. Ortiz, 481 A2d at 1385-86. We, therefore, reversed the Board’s order affirming the
referee’s dismissal and remanded the matter to the Board to determine whether the petitioner had
proper cause for her tardiness.
        Here, Claimant did not fail to attend a scheduled hearing. Claimant’s request to reopen
the hearing does not, therefore, fall within the purview of 34 Pa. Code § 101.24. This regulation
applies only to a party “who did not attend a scheduled hearing.” Here, Claimant voluntarily
withdrew his appeal, explicitly stating that “no additional action [was] required.” (C.R., Item
No. 8.)
       5
         Section 101.24 requires “reasons which constitute ‘proper cause’” when determining
whether to reopen a hearing. 34 Pa. Code § 101.24.

                                                 4
Workmen’s Comp. Appeal Bd., 443 A.2d 426, 427-28 (Pa. Cmwlth. 1982). With
regard to withdrawals in administrative matters, the Supreme Court of
Pennsylvania elaborated:
              The power to adjust inequities prior to an administrative
              determination on the merits must necessarily be as broad
              as the powers that are available after such a
              determination. The power to reinstate a gratuitous
              unilateral withdrawal should be liberally exercised absent
              a significant showing of prejudice by the other parties
              involved.
Bigley v. Unity Auto Parts, Inc., 436 A.2d 1172, 1178 (Pa. 1981).
              The Board framed its decision as affirming the Referee’s grant of
Claimant’s request to withdraw his appeal. The Board failed altogether to address
whether Claimant’s appeal should be reopened, independent of the Referee’s
decision to grant Claimant’s withdrawal. In other words, it appears as though the
Board never actually decided whether Claimant’s appeal should be reopened and,
instead, merely affirmed the Referee’s grant of Claimant’s withdrawal.6                    We
cannot review a nonexistent decision for an abuse of discretion. Furthermore, even
if the Board’s order can be construed as having considered Claimant’s petition as
one to reopen his appeal, it offers no explanation for the Board’s decision. The
Board’s order adopted the Referee’s findings and conclusions, all of which relate
to a decision that is not in dispute. The Referee merely determined that Claimant
properly withdrew his appeal under Section 101.55 of the Board’s regulations.


       6
         In the workers’ compensation context, appealing a withdrawal order is not necessary
when the relief sought is “the exercise of the sound administrative discretion to reinstate the
claim petition.” Bigley, 436 A.2d at 1178. That logic persists in an unemployment
compensation context. Claimant does not argue error in the approval of his withdrawal, but
seeks a discretionary reinstatement of his appeal and a new hearing.

                                              5
Because we cannot determine why the Board denied Claimant’s petition to reopen
his appeal, there exists no adequate basis for judicial review.
             We, therefore, conclude that the Board erred in failing to consider
Claimant’s petition to reopen his appeal in a broader context than whether the
Referee properly granted Claimant’s withdrawal. On remand, we instruct the
Board to consider Claimant’s petition to reopen his appeal and explain its decision
to grant or deny it.
             Accordingly, we vacate the Board’s order and remand the matter for
further consideration in accordance with this opinion.




                                          P. KEVIN BROBSON, Judge




                                          6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Berlin J. Theodore,                         :
                             Petitioner     :
                                            :
             v.                             :   No. 1977 C.D. 2016
                                            :
Unemployment Compensation                   :
Board of Review,                            :
                    Respondent              :



                                          ORDER


             AND NOW, this 31st day of July, 2017, the order of the
Unemployment Compensation Board of Review is hereby VACATED, and the
matter is REMANDED for further consideration in accordance with this opinion.
Jurisdiction relinquished.




                                   P. KEVIN BROBSON, Judge
