IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary H. Powell, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent : No. 1704 C.D. 2014

O R D E R

NOW, November 6, 2015, upon consideration of respondent’s 

application for reargument and petitioner’s response in opposition thereto, the 

application is denied to the extent it seeks reargument, but reconsideration is 

granted. 

The opinion and order filed September 17, 2015 are withdrawn.

The attached opinion and order are entered. 

BY THE COURT:

 

DAN PELLEGRINI, 

President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary H. Powell, :

Petitioner :

:

v. : No. 1704 C.D. 2014

: Submitted: March 20, 2015

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE BROBSON FILED: November 6, 2015 

Gary H. Powell (Claimant) petitions, pro se, for review of an order of 

the Unemployment Compensation Board of Review (Board), which affirmed an 

Unemployment Compensation Referee’s (Referee) decision denying Claimant 

unemployment compensation benefits under Section 402(b) of the Unemployment 

Compensation Law (Law).1For the reasons set forth below, we vacate and 

remand.

 

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 part, that a claimant shall be ineligible for 

compensation for any week in which the claimant’s unemployment is due to voluntarily leaving 

work without cause of a necessitous and compelling nature. “[W]hether a claimant had cause of 

a necessitous and compelling nature for leaving work is a question of law subject to this Court’s 

review.” Wasko v. Unemployment Comp. Bd. of Review, 488 A.2d 388, 389 (Pa. Cmwlth. 1985). 
2

Claimant applied for unemployment compensation benefits after he 

voluntarily resigned his position as a laborer and maintenance man with 

Joe Krentzman & Son Inc. (Employer)2on September 24, 2013. The Altoona UC 

Service Center (Service Center) found that Claimant was ineligible for benefits 

under Section 402(b) of the Law, pertaining to voluntary termination without cause 

of a necessitous and compelling nature. Claimant appealed, claiming that he had 

necessitous and compelling cause to quit, because Michael Krentzman, President 

of the company, forcibly assaulted him. 

Referee Brian Parr conducted a hearing on December 5, 2013.

(Certified Record (C.R.), Item Nos. 7, 12.) Claimant introduced Don Bailey as his 

representative for the hearing. Mr. Bailey, from the beginning, admitted to being 

suspended from practicing law in this Commonwealth for five years by the 

Pennsylvania Supreme Court, but he stated that he was present at the hearing as an 

advocate working pro bono. Neither Referee Parr nor Employer objected to 

Mr. Bailey representing Claimant. 

Mr. Bailey first presented Referee Parr with an issue concerning 

subpoenas. He alleged that, on December 2, 2013, Claimant submitted requests for 

six witnesses to be subpoenaed for the hearing but the subpoenas were not 

delivered to him until December 4th, one day before the hearing. Referee Parr 

agreed that the timeframe was short and offered to continue the hearing to a later 

date, if needed.

 

2

Employer filed an application to intervene in this matter, which the Court granted by 

order dated November 20, 2014.
3

Dale Watkins, Chief Financial Officer and Corporate Secretary for 

Employer, testified that he instructed security personnel on September 24, 2013, 

that if Claimant appeared on the premises after work hours not to admit him and to 

instruct him that he was to report during regular work hours. At this point in the 

hearing, Referee Parr decided that there was a factual issue to the testimony that 

required witnesses to be subpoenaed. The parties discussed the relevance behind 

the subpoenas, and the Referee continued the hearing for a later date. 

On December 9, 2013, Schaun D. Henry, Esquire, entered his 

appearance as attorney for Employer. (C.R., Item No. 13.) In his letter entering 

his appearance, Mr. Henry argued that Mr. Bailey improperly represented Claimant 

at the December 5th hearing, because Rule 217(j)(4)(vii) of the Pennsylvania Rules 

of Disciplinary Enforcement (Disciplinary Rules) prohibit the representation. The 

relevant part provides that “a formerly admitted attorney is specifically prohibited 

from . . . appearing on behalf of a client in any hearing or proceeding before any 

judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, 

hearing officer or any other adjudicative person or body.” Pa. R.D.E. 217(j)(4)(vii)

(emphasis added). Rule 102(a) of the Disciplinary Rules, Pa. R.D.E. 102(a),

defines a “formerly admitted attorney” as a “disbarred, suspended, administratively 

suspended, retired or inactive attorney.” (Emphasis added.) Mr. Henry objected to 

any evidence presented at the December 5th hearing on the basis that Mr. Bailey 

was prohibited from appearing before Referee Parr to represent Claimant, and he 

further argued that some of the subpoena requests were irrelevant. 

A second hearing was scheduled for January 8, 2014, but it was 

subsequently continued. (C.R., Item Nos. 15, 18.) By letter dated 

February 6, 2014, Referee Susan Hess informed Mr. Bailey that Rule 217 of the 
4

Disciplinary Rules prohibits a suspended attorney from appearing on behalf of a 

client in any hearing or proceeding before a referee, and thus, he cannot represent 

Claimant. (C.R., Item No. 22.) Referee Hess informed Claimant that he had thirty 

days to retain another lawyer. 

On March 26, 2014, Referee Hess conducted a second hearing.

(C.R., Item Nos. 24, 30.) In advance of the hearing, Employer sent a subpoena to 

the Pennsylvania State Police for an incident report, and Claimant sent a subpoena 

to David Parks, seeking to have him testify at the hearing. (C.R., Item Nos. 25, 27, 

29.) At the hearing, Claimant introduced Andy Ostrowski as his advocate. After 

some questioning, Referee Hess determined that Mr. Ostrowski’s attorney’s license 

was suspended. Referee Hess refused to allow Mr. Ostrowski to represent 

Claimant, but she allowed him to sit through the proceeding as an observer. 

Claimant continued the hearing pro se. Referee Hess admitted the statements 

made at the first hearing as part of the second hearing. 

Referee Hess essentially found Claimant’s story that Michael 

Krentzman, the president of the company, forcibly put his hand on Claimant’s 

chest was not credible. Thus, Claimant failed to establish a necessitous and 

compelling reason for leaving work. As such, Referee Hess denied Claimant 

unemployment compensation benefits.

Claimant appealed to the Board, and the Board affirmed the Referee’s 

order. The Board made the following findings of fact:

1. For the purposes of this appeal, the claimant was 

last employed by Joe Krentzman & Sons, Inc., 

from September 1, 1995, until 

September 24, 2013, at an hourly rate of $12.60.

2. The claimant’s final position was full-time laborer 

and maintenance person.
5

3. The claimant had previously acted as temporary 

non-ferrous department foreman.

4. On September 24, 2013, the company president 

directed the claimant to temporarily replace the 

non-ferrous department foreman, who left work 

that day due to a health issue.

5. The president described the claimant’s foreman 

duties, which included overseeing the repair of a 

machine. 

6. The president asked if he could count on the 

claimant because the machine repair was a serious 

issue and he needed someone to take charge of the 

repair and the eight non-ferrous department 

employees. 

7. The claimant responded that he was the only 

person that the president could count on, and when 

the president said that he could not count on the 

claimant at times due to his poor performance, the 

claimant told the president that he did not work for 

him, he only worked for the president’s father. 

8. The claimant also told the president that he did not 

have to listen to the president’s brother, who is the 

chief financial officer, he only worked for the 

president’s father, who owned the company, and 

he wanted to speak with the president’s father 

immediately. 

9. When the claimant started walking toward the 

main office, the president said that they could both 

speak with the president’s father on the claimant’s 

break at 10:00 a.m.

10. The claimant turned back toward the main 

warehouse area, claimed that the president 

assaulted him, and asked nearby employees for a 

cell phone so that he could call 9-1-1.

11. The president did not touch the claimant and, 

specifically, did not put a hand on the claimant’s 

chest to block him from leaving.

12. At some point during this interaction with the

president, the claimant said that he needed to travel 
6

to Lewistown Paper for supplies, and the president 

said that he would run the errand over lunch 

because he needed the claimant to be on duty in 

the non-ferrous department.

13. When none of the employees would give the 

claimant access to a cell phone, at 9:14 a.m., the 

claimant walked out without punching out, walked 

across the street to his car in the parking lot, and 

drove away.

14. The claimant subsequently reported the incident to 

the Pennsylvania State Police, and a trooper 

responded to the employer’s warehouse to follow 

up on the complaint, but no charges were filed 

against the employer.

15. The claimant did not report to work on 

September 25, 2013, or thereafter, and did not 

contact the president or his immediate supervisor, 

the company’s chief financial officer who was also 

in charge of human resources issues.

16. The chief financial officer informed the 

employer’s security personnel that the claimant 

was not permitted to enter the workplace after 

hours; this rule applied to all former employees.

17. The employer’s management never instructed 

security or informed the claimant that he was not 

permitted to return to the workplace during 

working hours. 

(C.R., Item No. 36.) The Board also explained that Referee Hess properly 

prohibited the suspended attorneys from representing Claimant in the proceeding 

before her and noted that Claimant was given proper notice of the change of

representation and sufficient time to retain different counsel. The Board also 

resolved the conflicts in testimony in favor of Employer, placing weight on 

Employer’s witnesses’ credible first-hand testimony and Claimant’s lack of 

attempts to contact Employer after the altercation. Finding that Claimant did not 

demonstrate credibility and offered no support to show a hostile work 
7

environment, the Board determined that Claimant failed to establish necessitous 

and compelling cause for voluntarily quitting his employment. Claimant petitioned 

the Board for reconsideration of its decision, which the Board denied. (C.R., Item 

Nos. 37, 39.) Claimant now petitions this Court for review.

On appeal,

3 Claimant essentially makes the following arguments: 

(1) the Board erred in applying the Disciplinary Rules to prohibit the suspended 

attorneys from representing him at the hearings; (2) the Board violated Claimant’s 

due process rights by improperly prohibiting Mr. Bailey and Mr. Ostrowski from 

representing Claimant; (3) the Board’s factual finding that the president did not put 

a hand on Claimant’s chest to block him from leaving is not supported by 

substantial evidence; and (4) the Board erred as a matter of law in concluding that 

Claimant did not have a necessitous and compelling cause to quit his job.

First, we address Claimant’s argument that the Board erred in 

applying the Disciplinary Rules to prohibit the suspended attorneys from 

representing him at the hearings. Claimant asserts that Section 214 of the Law,

4

as 

confirmed by our Supreme Court’s decision in Harkness v. Unemployment 

Compensation Board of Review, 920 A.2d 162 (Pa. 2007), permits non-attorney 

representatives to represent individuals during a referee hearing, and Mr. Bailey 

and Mr. Ostrowski were acting as representatives, not as attorneys, for his 

hearings. Thus, Claimant contends that the Board erred in precluding the 

 

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.

4 Added by the Act of June 15, 2005, P.L. 8, 43 P.S. § 774. 
8

suspended attorneys from representing him. The Board argues that 

notwithstanding Section 214 of the Law, Mr. Bailey and Mr. Ostrowski were 

prohibited pursuant to the Disciplinary Rules. The Board argues that Mr. Bailey 

and Mr. Ostrowski are not the standard “non-attorneys” to which the case law 

applies. (Respondent’s Br. at p. 9.) The Board emphasizes that Mr. Bailey and 

Mr. Ostrowski are suspended attorneys, not non-attorneys. (Id.)

Rule 201(a) of the Disciplinary Rules provides that the Supreme Court 

and the Disciplinary Board of the Supreme Court (Disciplinary Board) have 

exclusive disciplinary jurisdiction over “[a]ny attorney admitted to practice law in 

this Commonwealth,” “[a]ny formerly admitted attorney . . . with respect to acts 

subsequent thereto which amount to the practice of law or constitute the violation 

of the Disciplinary Rules, these rules or rules of the [Disciplinary] Board adopted 

pursuant hereto,” and “[a]ny attorney not admitted in this Commonwealth who 

practices law or renders or offers to render any legal services in this 

Commonwealth.” Pa. R.D.E. 201(a). Disciplinary Rule 217(d)(1) provides, in 

part, that “[t]he formerly admitted attorney, after entry of the disbarment, 

suspension, administrative suspension or transfer to inactive status order, shall not . 

. . engage as attorney for another in any new case or legal matter of any nature.”

Pa. R.D.E. 217(d)(1) (emphasis added). Furthermore, pursuant to Disciplinary 

Rule 217(j)(4), a formerly admitted attorney is specifically prohibited from

“representing himself or herself as a lawyer or person of similar status,” “rendering 

legal consultation or advice to a client,” and “appearing on behalf of a client in any

hearing or proceeding or before any judicial officer, arbitrator, mediator, court, 

public agency, referee, magistrate, hearing officer or any other adjudicative person 

or body.” Pa. R.D.E. 217(j)(4) (emphasis added). Disciplinary Rule 102(a)
9

defines a “formerly admitted attorney” as “[a] disbarred, suspended, 

administratively suspended, retired or inactive attorney.” Pa. R.D.E. 102(a)

(emphasis added). 

Section 214 of the Unemployment Compensation Law, however, 

provides that “[a]ny party in any proceeding under this act before the department, a 

referee or the board may be represented by an attorney or other representative.” 

(Emphasis added.) Moreover, our Supreme Court in Harkness held that 

non-attorneys may represent an individual before a referee hearing, because such 

activity does not constitute the practice of law. See Harkness, 920 A.2d at 169. 

In Harkness, the Supreme Court reasoned that a non-attorney or lay 

representative can represent individuals at a referee hearing because (1) an 

unemployment compensation proceeding is largely routine and primarily focused 

on creating a factual basis, or record, by which the referee can render a decision 

and (2) the nature of the proceeding is remedial and the purpose is to provide 

economic security to unemployed individuals who are unemployed through no 

fault of their own, thus the proceedings are “by design, brief and informal.” Id. at 

166, 168. Thus, the Supreme Court concluded that a non-attorney representing a 

party before a referee hearing is not engaging in the practice of law.

5

 Id. at 169. It 

 

5

In Harkness, the claimant was discharged from her employment for using vulgar 

language towards a customer. Harkness, 920 A.2d at 164. At the referee hearing, the employer 

was represented by an employee of a tax company. Id. The employer’s representative was not 

an attorney. Id. After being found ineligible for benefits by the referee, the claimant appealed to 

the Board. Id. at 165. The Board affirmed, noting that the Law permits parties to be represented 

by legal or non-legal advisors. Id. Upon appeal, this Court reversed the Board’s decision, 

concluding that it was error for the referee to permit the employer to be represented by a 

non-attorney. Id. The employer appealed to the Supreme Court, which reversed this Court’s 

order. Id. at 171. 
10

is important to note here that the main issue behind Harkness was whether 

individuals representing claimants in unemployment compensation proceedings 

were illegally engaging in the practice of law. The Supreme Court concluded they 

were not. Id. at 166.

Here, we are not confronted with the question of whether representing 

a party before an unemployment compensation referee constitutes the practice of 

law, but rather, we are presented with the question of whether the Board acted 

properly when it prohibited the suspended attorneys from representing Claimant at 

the hearing. Pursuant to Section 214 of the Law, Claimant had a statutory right to 

be represented by his designee at an unemployment compensation hearing. Our 

Supreme Court has held that the representative need not be an attorney, because 

representation before an unemployment referee does not constitute the practice of 

law. See Harkness. Under Section 214 of the Law, then, Claimant was entitled to 

designate the suspended attorneys as his representative.

Rather than applying Section 214 of the Law and the Supreme Court’s 

decision in Harkness interpreting it, the Board applied a Disciplinary Rule. 

Enforcement of the Disciplinary Rules, however, falls within the “exclusive” 

jurisdiction of the Supreme Court and the Disciplinary Board. Pa. R.D.E. 201(a). 

We note at least one instance where the Pennsylvania Supreme Court, responding 

to a petition of the Disciplinary Board, held a suspended attorney in contempt for 

willful violation of Disciplinary Rule 217(j) by representing claimants and 

employers in unemployment compensation matters before the Board. In the 

Matter of David Louis Bargeron, 130 DB 2005 (Pa. July 27, 2011) (Bargeron).

The question in this case, however, is not whether the suspended 

attorneys—Mr. Bailey and Mr. Ostrowski—should be sanctioned as a matter of 
11

discipline by the Pennsylvania Supreme Court for violating Disciplinary Rule 

217(j). The question is whether the Board or referee may enforce Disciplinary 

Rule 217(j) to deprive a claimant of his right to representation of his choice under 

Section 214 of the Law, which does not preclude a “suspended attorney” from 

serving as a claimant representative. We hold that they cannot. As noted above, 

the jurisdiction of the Disciplinary Board and the Supreme Court to prosecute and 

enforce the Disciplinary Rules is “exclusive.” Pa. R.D.E. 201(a). As Bargeron

illustrates, both have taken steps to discipline lawyers who violate Rule 217(j) by 

representing clients in unemployment compensation matters. Here, the Board

ignored its own governing statute and attempted to step into the shoes of the 

Disciplinary Board and the Supreme Court, effectively sanctioning Claimant for 

Mr. Ostrowski’s violation of the Disciplinary Rules by denying Claimant

representation at the second hearing.

6

Should this situation arise again, it would be more appropriate, and 

consistent with both Disciplinary Rule 217(j) and Section 214 of the Law, for the 

referee and the Board to advise the suspended attorney that the suspended 

attorney’s representation of the claimant would be a violation of Disciplinary Rule 

217(j). If the suspended attorney chooses, nonetheless, to continue the 

representation, the referee and Board must allow it under Section 214 of the Law, 

but they may refer the suspended attorney to the Disciplinary Board for further 

 

6 Referee Parr permitted Mr. Bailey to represent Claimant at the first hearing, because 

Employer did not object to the representation until after the first hearing and before the second 

hearing. Referee Hess admitted the statements made at the first hearing as part of the second 

hearing. Thus, Claimant received the benefit of Mr. Bailey’s representation at the first hearing, 

but he was denied Mr. Bailey’s and Mr. Ostrowski’s representation thereafter. 
12

action consistent with Bargeron. If the suspended attorney chooses to withdraw, 

then the referee and the Board should afford the claimant an opportunity to find 

alternative representation.

Accordingly, the order of the Board is vacated, and the matter is 

remanded to the Board for a new hearing.

 

 P. KEVIN BROBSON, Judge

Judge McGinley dissents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary H. Powell, :

Petitioner :

:

v. : No. 1704 C.D. 2014

:

Unemployment Compensation :

Board of Review, :

Respondent :

O R D E R

AND NOW, this 6th day of November, 2015, the order of the 

Unemployment Compensation Board of Review (Board) is hereby VACATED,

and the matter is REMANDED to the Board in accordance with this opinion.

Jurisdiction relinquished. 

 

 P. KEVIN BROBSON, Judge