Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Clinton E. Hoffer, Jr., No. B-126400.
Arnold Laikin, with him H. David Spirt, for appellant.
Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case.
[ 25 Pa. Commw. Page 241]
Clinton E. Hoffer, Jr. (claimant) has filed this appeal from a decision of the Unemployment Compensation Board of Review (Board), dated June 24, 1975, which affirmed a referee's denial of unemployment compensation benefits, holding that, because of his willful misconduct he was barred from benefits by the provisions of Section 402(e) of the Unemployment Compensation Law,*fn1 43 P.S. § 802(e). The sole issue raised is whether or not the claimant's appeal was afforded a full and fair determination by the Board.
The Bureau of Employment Security (Bureau) had granted benefits to the claimant and it was on the employer's appeal to the Board that the case was assigned to a referee, who held a hearing on December 20, 1975. Notice of this hearing was sent to the claimant's correct address but he failed to appear, and the referee, after receiving testimony only from the employer, reversed the Bureau and denied benefits.*fn2 The claimant then
[ 25 Pa. Commw. Page 242]
appealed to the Board and the case was remanded to the referee as a hearing officer*fn3 for the purpose of obtaining testimony from the claimant. The claimant appeared at a hearing on April 25, 1975*fn4 and testified that he had submitted his evidence by letter to the Board and that he would stand on that testimony. He said: "I wish to state that I have spoken to Mrs. Ann Reeser*fn5 in Harrisburg, written her a letter which I understand the information and the testimony was mailed back here for a decision. That's it. I already gave her, you know, all the information. I don't have any new testimony in other words. She said it was all transcribed and (inaudible) up already. That was quite a while ago."*fn6 (Footnote ours.) The referee asked the claimant whether or not he had any additional testimony to present and the claimant replied that he had already made a statement. Thereupon, the record was closed. The letter to which the claimant referred is not in the record, nor is there any evidence as to whether or not it was received. Unquestionably, it was not considered by the referee acting as hearing officer or by the Board.
[ 25 Pa. Commw. Page 243]
In Knox v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 588, 591-592, 371 A.2d 60, 62-63 (1974) we held that
"[i]f the record made in this case would show in any way that the referee had improperly refused to accept relevant competent and material evidence, then we would have to agree that Knox was deprived of due process of law. However, there is no such showing in the record.
"Knox fails to point out either a specific deprivation of rights or an unfairness permeating the hearing so as to strike at the conscience. There is nothing in the record which would permit us to conclude that Knox was deprived of any of his rights under the law. Our reading of the record permits us to conclude that the referee carried out all of his duties required by the Board's rules imposing duties to assist an ...