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FREDERICK BENDER v. COMMONWEALTH PENNSYLVANIA (06/28/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 28, 1982.

FREDERICK BENDER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Frederick Bender, No. B-190843.

COUNSEL

Marvin Benton, for petitioner.

John Kupchinsky, Associate Counsel, with him James Norris, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 245]

Frederick Bender (petitioner) appeals a decision of the Unemployment Compensation Board of Review (Board) adopting a referee's denial of benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).*fn1

We must vacate the Board's order and remand this case for a new hearing inasmuch as our review of the record indicates that the referee failed to inform the petitioner of his right to have counsel, to present witnesses in his own behalf, and to cross-examine adverse witnesses as required by 34 Pa. Code § 101.21(a).

The Board argues that the petitioner failed to preserve the issue of not being advised of the right to have counsel because he did not raise that issue below*fn2 and that, in any event, the referee's alleged failure to advise him, did not prejudice him or materially affect his rights. We have held, however, that the issue of a claimant's right to have counsel may be raised for the first time at oral arguments. Peda v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 184, 439 A.2d 888 (1982); see Felici v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 332, 444 A.2d 843 (1982) (right to have counsel issue raised for the

[ 67 Pa. Commw. Page 246]

    first time in a brief before this Court). And, it not being apparent from the record that the petitioner validly waived his right to be advised, or that he was not prejudiced, or that his rights were not materially affected by the referee's failure to advise him properly, we must vacate the order of the Board and remand this case for a new hearing.

Order

And Now this 28th day of June, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is vacated and this case is remanded to said Board for a new hearing consistent with this opinion.

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

Disposition

Vacated and remanded.


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