Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Lorenzo M. Williams, No. B-213024.
Michael C. Schutzbank, Silverstein and Kaufman, for petitioner.
Michael D. Alsher, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges Williams, Jr., MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge MacPhail dissents.
[ 86 Pa. Commw. Page 252]
Lorenzo M. Williams (petitioner) petitions for review of the order of the Unemployment Compensation Board of Review (board) which affirmed the referee's decision denying benefits under Section 402(e) of the Unemployment Compensation Law.*fn1 The sole issue which he raises before us is whether his due process rights were violated when the referee proceeded with the hearing after the petitioner refused to waive his right to representation by counsel.
Given this issue, it is necessary to detail the pertinent procedural history of this case. After the petitioner appealed the determination of the Office of Employment Security, the referee scheduled a hearing for October 5, 1982, with due notice to the parties. On September 30, 1982, the petitioner's attorney requested a continuance due to a scheduling conflict on October 5, 1982, in federal court. The referee granted this request and issued a continuance notice. On October 13, 1982, the referee mailed new hearing notices to the parties advising that the hearing had been re-scheduled for October 25, 1982. Again, on October 18, 1982, the petitioner's attorney requested a continuance because he had arrangements to be out of town from October 25, 1982 until November 8, 1982. The referee denied this request. The petitioner was unaware of his attorney's
[ 86 Pa. Commw. Page 253]
second request for a continuance and expected to be represented at the hearing.
Appearing on October 25, 1982 were the petitioner and two employer witnesses, Mr. Birzes, the petitioner's foreman, and Ms. Assenmacher, an employee benefits specialist. After his opening remarks and the swearing of the witnesses, the referee initiated the following dialogue:
Now are you all aware of your right to representation by counsel and to present witnesses to testify on your behalf and to cross-examine adverse witnesses?
QR: You must answer for it to (sic).
QR: Are you willing to proceed without counsel and without additional witnesses ?
AC: (unintelligible.) Counsel's here to represent me.
AC: He's supposed to be here to ...