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decided: March 17, 1983.


Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bruce Person, No. B-192665.


Marvin Benton, for petitioner.

Joel G. Cavicchia, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 73 Pa. Commw. Page 12]

The Unemployment Compensation Board of Review (Board) denied benefits to Bruce Person and assessed a fault overpayment. He appeals. We affirm.

The primary issue is whether Person is entitled to a new hearing. The procedural and factual history, which must be examined to decide this issue, is as follows: Person, a Fort Washington Racquetball Club employee, received unemployment benefits after being laid off on November 30, 1979, due to lack of work. On August 2, 1980, the Office of Employment Security (OES) declared Person ineligible for benefits under

[ 73 Pa. Commw. Page 13]

Section 401(b) of the Unemployment Compensation Law*fn1 (Law) and assessed a fault overpayment of $4,760.00 under Section 804(a)*fn2 after discovering that Person had failed to report that, while collecting benefits, he was gainfully employed by Environmental Management.

Person appealed but did not appear at a September 18, 1980, referee's hearing. The referee affirmed the benefits denial and overpayment assessment. The Board remanded for additional testimony, but Person again did not appear at the hearing scheduled for December 9, 1980, albeit through no fault of his own.*fn3 The Board scheduled another hearing for January 14, 1981, however, Person again failed to appear. The Board affirmed the referee's decision. Person petitioned for reconsideration and, following its denial, he appealed to this Court.*fn4

[ 73 Pa. Commw. Page 14]

Person does not dispute (nor do we question) the Board's conclusion that a claimant is ineligible for benefits if he is gainfully employed during the period for which benefits are claimed. See Braunstein at 103, 427 A.2d at 316. Rather, he argues that the Board erred by issuing a decision without hearing his testimony. He alleged that, on January 14, 1981, he arrived at the local OES one hour prior to the scheduled hearing, checked in with the receptionist and remained in the waiting area until the office closed but was never summoned for the hearing. The referee, however, testified that Person had not checked in with the receptionist at any time during that day.*fn5

Section 504 of the Law*fn6 provides, in part, that "[w]hen any claim pending before a referee is removed or transferred to the board, the board shall afford the parties and [the Pennsylvania Department of Labor and Industry] reasonable opportunity for a fair hearing." (Emphasis added.) It is clear from the statute that the Board is merely required to provide a claimant with a reasonable opportunity to be heard. If he does not avail himself of this opportunity, the Board may complete its administrative review. Since Person twice failed to appear after being duly notified of the hearings,*fn7 we cannot conclude that the Board abused its discretion by refusing to remand for yet another hearing.

The Board's findings are supported by substantial evidence.

[ 73 Pa. Commw. Page 15]



The Unemployment Compensation Board of Review order, No. B-192665, dated February 25, 1981, is hereby affirmed.



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