Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Albert R. Hoover, No. B-228341.
David C. Mason, Baird, Uller & Test, for petitioner.
Jonathan Zorach, Associate Counsel, with him, James K. Bradley, Associate Counsel, and Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge Colins. Dissenting Opinion by Judge Doyle.
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In this appeal, we are again confronted with a procedural issue raised by the use of the telephone to conduct administrative hearings of the Unemployment Compensation Board of Review. The precise question before us is whether the instant claimant's right to present evidence was effectively foreclosed by the inherent
[ 97 Pa. Commw. Page 416]
nature of the telephonic hearing. We conclude that it was, and accordingly, remand.
Albert R. Hoover (claimant) was denied benefits by the Office of Employment Security, which determined that he had been dismissed from his job for having committed acts of willful misconduct as contemplated by Section 402(e) of the Unemployment Compensation Law.*fn1 He appealed this determination and a hearing was telephonically conducted, whereby the referee, who was present in the hearing room, telephoned the claimant, who was at another location, in order to take claimant's testimony.*fn2
Preliminarily we note that we recently held that the Board can no longer conduct telephonic hearings, over the objections of one of the litigants, "without first having promulgated regulations which will safeguard the minimum due process rights of the parties and also insure that the hearings are conducted uniformly by the referees." Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 519, 523, 501 A.2d 1180, 1182 (1985). The instant claimant did not object to the nature of the hearing at the administrative level. Issues not raised below cannot be raised for the first time on appeal; therefore, the propriety of the telephone hearing itself may not be challenged. Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981).
However, the use of the telephone infringed upon the right of the claimant to present evidence in his behalf. The Board's regulations provide: "The tribunal shall determine the order in which the evidence shall be presented in all hearings. Within the discretion of
[ 97 Pa. Commw. Page 417]
the tribunal, the parties shall be permitted to present all evidence and testimony which they believe is necessary to establish their rights." 34 Pa. Code § 101.21(b). The claimant in this case was discharged for tardiness and excessive absenteeism. He wished to refute this charge by showing that he did not miss the number of days the employer asserted he had, and to so do, he desired to admit ...