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RICHARD CHAPMAN v. COMMONWEALTH PENNSYLVANIA (09/12/83)

decided: September 12, 1983.

RICHARD CHAPMAN, 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 Richard J. Chapman, No. 200028.

COUNSEL

John P. Bogdanovicz, with him Mark A. Schneider, for petitioner.

James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 77 Pa. Commw. Page 128]

Richard Chapman (Claimant) appeals from an Unemployment Compensation Board of Review (Board)

[ 77 Pa. Commw. Page 129]

    order affirming a referee's benefit denial under Section 402(e) of the Unemployment Compensation Law (Law).*fn1

Claimant, a floor boy at a clothing factory, having amassed a record of absenteeism and tardiness with concomitant warnings and suspensions, was discharged after properly reporting his absence due to an alleged illness one day after having received a final warning regarding his absenteeism. The Board, concluding that Claimant's last absence was unjustified, affirmed that part of the referee's order denying benefits under Section 402(e) of the Law.

The referee, below, did not comply with 34 Pa. Code § 101.21(a) which directs a tribunal to advise unrepresented claimants of their right to secure counsel, to cross-examine adverse witnesses and to offer witnesses. Contending that the referee's omission precluded a full and fair adjudication of his claim by adversely affecting the presentation of his case, Claimant seeks a remand. See, Mayberry v. Unemployment Compensation Board of Review, 72 Pa. Commonwealth Ct. 611, 457 A.2d 182 (1983); Golden v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 439, 451 A.2d 573 (1982). The Board, however, perfunctorily argues that the referee's failure to apprise Claimant of his rights was harmless error, thus obviating the necessity for a remand. See, Snow v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 396, 433 A.2d 922 (1981); Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 275, 431 A.2d 378 (1981). We disagree.

In Robinson, the referee's omission constituted harmless error because of claimant's inculpatory

[ 77 Pa. Commw. Page 130]

    testimony. Id. at 279-280, 431 A.2d at 380. Similarly, we concluded in Snow, that the referee's omission was not prejudicial inasmuch as the uncontroverted facts were presented clearly and concisely ...


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