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RICHARD MILLER v. COMMONWEALTH PENNSYLVANIA (06/06/84)

decided: June 6, 1984.

RICHARD MILLER, 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 Richard Miller, No. B-202378.

COUNSEL

Gregory Brooke O'Connell, for petitioner.

Richard F. Faux, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Colins

[ 83 Pa. Commw. Page 98]

Richard Miller (Claimant) appeals a decision of the Pennsylvania Unemployment Compensation Board of Review (Board), which reversed a referee's decision to award benefits to Claimant on the ground that Doma Importing Company (Employer), proved willful misconduct by the Claimant.*fn1 Claimant maintains that the Board's order is not supported by substantial evidence, that the referee, acting as a hearing officer for the Board, failed to advise him of his right to counsel,

[ 83 Pa. Commw. Page 99]

    to offer witnesses, and to cross-examine adverse witnesses at the hearing.

Claimant was employed as a truck driver. He was discharged on June 1, 1981 for general unsatisfactory work performance and, specifically, for damaging an engine on a truck and not completing his work within a specified amount of time. Claimant was also involved in an accident with employer's truck.

The Office of Employment Security (Office) initially determined that the Claimant was eligible for benefits. The employer appealed the Office's decision, and following a hearing at which the Claimant appeared without counsel, the referee affirmed this decision.

The employer filed an appeal and the Board remanded the case to a referee, acting as Hearing Officer for the Board. The Board reversed the decision of the first referee and denied benefits to Claimant, finding willful misconduct.

Claimant maintains that the Board's legal conclusions are not supported by substantial evidence. We need not address this argument on the merits, however, for he alternatively contends that this case should be remanded because he was denied a fair and impartial hearing by the referee as required by 34 Pa. Code ยง 101.21(a).*fn2

The record indicates that Claimant appeared at all hearings without counsel. However, the record does not indicate that he ...


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