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decided: May 17, 1984.


Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of James E. Pisano, No. B-199574.


Mark E. Kogan, Kogan and Cogan, for petitioner.

John T. Kupchinsky, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 82 Pa. Commw. Page 476]

This appeal results from an order of the Unemployment Compensation Board of Review (Board), dated September 21, 1981, affirming a decision of the referee which ordered petitioner-claimant James E. Pisano to repay $13,228.00, the amount of benefits claimant had collected over a two-year period. The referee held that claimant had been self-employed during the questioned period and was, therefore, ineligible to collect those benefits.

From March, 1976, until December, 1977, claimant managed a restaurant known as S. W. Churchill, Ltd. (Churchill). Claimant applied for, and was granted, unemployment benefits which he collected for the first seven months of 1978. Churchill went out of business in early 1978. Claimant then began managing a restaurant for Paulsboro Enterprises, Inc., t/a Restaurante Focolare (Focolare). Claimant again applied for benefits in February, 1979, claiming he had been laid off because business was slow. Claimant collected benefits from February, 1979, until the end of May of that year when he was called back to manage Focolare. Claimant retained that position until November, 1979, when he again applied for benefits, claiming he had been laid off. Claimant collected benefits from that point until November, 1980.

[ 82 Pa. Commw. Page 477]

At some time in 1981, the Office of Employment Security (OES) received information that claimant had actually been self-employed for the periods he had managed the two restaurants. Claimant reported to the OES and discussed the matter. The OES conducted an investigation, following which it issued a series of determinations which held that claimant had been a self-employed businessman and therefore was not entitled to the benefits he had collected; the OES also held that claimant had withheld pertinent information and was, therefore, responsible for repaying the entire amount.

A hearing on claimant's appeal was scheduled for April 2, 1981. Claimant's present counsel was notified of the hearing on March 30, 1981. The following day, counsel requested a thirty day continuance because of scheduling conflicts. The hearing was rescheduled for April 8, 1981, and counsel informed the referee he would make every effort to clear his schedule so that he could attend. Nevertheless, on the morning of the rescheduled hearing, counsel had delivered to the referee a letter which stated he was still unavailable; he again requested a continuance. The referee, however, refused the request and held the "hearing" as scheduled. Despite the fact that neither claimant nor his attorney were present, the referee admitted various documents pertaining to the OES' investigation which allegedly proved that claimant had been both a stockholder and officer in each of the corporations. Also included was an eligibility review form which claimant completed in September, 1980, containing the following question, "Are you an officer of a corporation, union or other organization?" That form also indicated claimant's response of "No". Based on this evidence, the referee made factual findings which, in his view, supported the legal conclusions

[ 82 Pa. Commw. Page 478]

    that claimant had been self-employed and must repay the $13,228.00. Claimant filed a timely appeal to the Board, alleging that the referee's refusal to grant the continuance had denied claimant the right to counsel and that the decision was erroneous as a matter of both fact and law.

The Board, after receiving claimant's petition for appeal, ordered a second hearing to allow both claimant and the employers to present evidence. The hearing, which was held before another referee, began with that referee's recitation of the documents which had been admitted at the first hearing. The referee asked ...

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