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BETHLEHEM MINES CORP. v. COMMONWEALTH PENNSYLVANIA (05/06/83)

decided: May 6, 1983.

BETHLEHEM MINES CORP., 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 William B. Ursic, No. B-188800.

COUNSEL

Phillip J. Binotto, Jr., Greenlee, Richman, Derrico & Posa, for petitioner.

James K. Bradley, 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 Judge Doyle.

Author: Doyle

[ 74 Pa. Commw. Page 187]

This is an appeal by Bethlehem Mines, Inc. from a decision of the Unemployment Compensation Board of Review which affirmed the decision of a referee to grant unemployment compensation benefits to William B. Ursic. We affirm.

William B. Ursic (Claimant) had been employed by Bethlehem Mines (Employer) for a period of over twenty-nine years when he was discharged for alleged misconduct on June 18, 1980. Claimant filed for unemployment compensation, and the Bureau of Employment Security (Bureau) determined that Claimant was ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law.*fn1 Claimant appealed from this determination, and a hearing was held before a referee on August 11, 1980. On August 12, 1980, the referee issued a decision reversing the Bureau and granting benefits to Claimant. The Employer

[ 74 Pa. Commw. Page 188]

    appealed this decision to the Board which affirmed the decision of the referee. Appeal to this Court followed.

The parties do not disagree that the referee's findings of fact are supported by substantial evidence contained in the record of the hearing. Instead, the only issue before this Court is whether the referee properly denied the Employer's request for a continuance. The grant or refusal of a request for a continuance in an unemployment compensation hearing is not a proper subject of review without a clear showing of an abuse of discretion. Martin v. Unemployment Compensation Board of Review, 38 Pa. Commonwealth Ct. 419, 393 A.2d 514 (1979). Furthermore, the power to grant a continuance is controlled by the following administrative regulation:

(a) Continuance of a hearing shall be granted only for proper cause and upon such terms as the tribunal may deem proper. The inability of a party to attend a hearing because he received less than seven days notice shall be deemed proper cause for continuance of a hearing.

(b) Within the discretion of the tribunal, a continuance shall not, however, be granted merely because of the absence of a witness, unless it appears that the testimony and evidence he could give would be competent and relevant to the issues involved and that such information is essential to a proper determination of the case.

34 Pa. Code ยง 101.23. Considering our limited scope of review and based upon our study of the record, we are convinced that the referee's decision to deny the Employer's request for a continuance is neither the result of an ...


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