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MARSHA CONRAD v. COMMONWEALTH PENNSYLVANIA (07/17/84)

decided: July 17, 1984.

MARSHA CONRAD, 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 Marsha Conrad, No. B-216181.

COUNSEL

Ronald F. Brien, for petitioner.

Michael D. Alsher, Associate Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Doyle, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri. Judge Palladino dissents.

Author: Barbieri

[ 84 Pa. Commw. Page 33]

Marsha Conrad (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) which found her to be disqualified by the provisions of Section 402(e) of the Unemployment Compensation Law*fn1 from receiving unemployment compensation benefits since she had been discharged from her employment for willful misconduct. We reverse and remand.

The sole question raised in this appeal is whether the referee abused his discretion by not granting Claimant a brief continuance.

Section 101.23 of Title 34 of the Pennsylvania Code, the administrative regulation pertaining to the granting of continuances in unemployment compensation proceedings, reads as follows:

(a) Continuance of a hearing shall be granted only for proper cause and upon such

[ 84 Pa. Commw. Page 34]

    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 of 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.

On appeal, "[i]t is well settled that we may override the judgment of the referee as to whether or not to grant a continuance only if there has been 'a clear showing of an abuse of discretion.'" Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 443-444, 463 A.2d 1298, 1300 (1983) (quoting Bethlehem Mines v. ...


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