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SHARON J. BENNETT v. COMMONWEALTH PENNSYLVANIA (05/12/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 12, 1982.

SHARON J. BENNETT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Sharon J. Bennett, No. B-181921.

COUNSEL

Peter B. Macky, for petitioner.

Charles G. Hasson, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 66 Pa. Commw. Page 456]

Sharon J. Bennett (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) affirming a referee's decision to deny her benefits under Section 402(b)(1) of the Pennsylvania Compensation Law.*fn1

The claimant was last employed by the Stettler Hotel as a bartender and had held that position for seven months. On January 3, 1980, she quit her job and subsequently applied for benefits with the Office of Employment Security (Office), but her application was denied on the basis that she did not establish a necessitous or compelling reason for voluntarily terminating

[ 66 Pa. Commw. Page 457]

    her employment. She appealed this determination and appeared without counsel at a hearing held before a referee where, as in her previous application with the Office, she maintained that she was forced to quit her employment for two reasons: because of problems which the employment caused in her marriage; and, because the bar in which she worked was a "mad house" it being "plain to see that no one bartender could handle it alone" and the other bartender "would just sit there and not help [her]." The referee decided that these reasons were not cause of a necessitous and compelling nature and accordingly denied her application. The Board affirmed without an opinion. We reverse and remand.

Before us the claimant argues that the referee's three findings of fact were insufficient upon which to base his conclusion that benefits be denied. Additionally, she argues that she was not afforded a full and fair hearing inasmuch as the referee failed to assist her in developing relevant and sufficient testimony at the hearing concerning, inter alia, alleged sexual harassment by patrons of which her employer was aware but did not remedy, physical abuse, and illegal underage drinking.

The rules of practice and procedure governing hearings before referees in unemployment compensation cases provide at 34 Pa. Code ยง 101.21(a) that:

In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties. (Emphasis added.)

The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the

[ 66 Pa. Commw. Page 458]

    case necessary for a decision may be adequately developed to "insure that compensation will not be paid in cases in which the claimant is not eligible and that compensation will be paid if the facts, thoroughly developed, entitled the claimant to benefits." Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 275, 279, 431 A.2d 378, 380 (1981) (emphasis added). The referee, of course, need not advise a party on evidentiary questions or on specific points of law*fn2 but must act reasonably in assisting in the development of the necessary facts, and any failure to develop an adequate record must be prejudicial to the claimant and not mere harmless error or else a reversal will not be found. See generally Snow v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 396, 433 A.2d 922 (1981); Robinson.

Our review of the very sparse record and of the two-page hearing transcript in this case -- of which only less than half of a page is germane to the Section of the Act here concerned*fn3 -- reveals that the referee, in addition to not informing this pro se*fn4 claimant of her right to counsel,*fn5 to cross-examine, and to offer

[ 66 Pa. Commw. Page 459]

    witnesses on her behalf, did not ask her questions sufficient to enable her to emphasize the factual aspects of her contentions*fn6 which might have aided her in establishing a necessitous and compelling cause for her voluntary termination of her employment which would, if proven, allow her to receive benefits. Moreover, we believe that the referee's mode of conducting this hearing caused the hearing to be less than full and fair and did prejudice the rights of this claimant in a manner which was not mere harmless error. Robinson.

We will therefore reverse the order of the Board and remand this matter to them for a full and fair hearing consistent with this opinion.

Order

And Now, this 12th day of May, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed and remanded to them for an evidentiary hearing consistent with this opinion.

Order

And Now, this 17th day of May, 1982, footnote five of our opinion filed May 12, 1982, in the above-captioned matter shall be amended to read as follows:*fn5

[ 66 Pa. Commw. Page 460]

We have recognized that such failure by a referee to advise a pro se claimant as to his/her rights would be a basis for a remand. See Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 427 A.2d 631 (1981); Turner v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 489, 442 A.2d 1212 (1982).

Judge Mencer did not participate in the decision in this case.

Disposition

Reversed and remanded.


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