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MARY KUNA v. COMMONWEALTH PENNSYLVANIA (07/14/86)

decided: July 14, 1986.

MARY KUNA, 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 Mary Kuna, No. B-232474-B.

COUNSEL

Henry C. Markofski, for petitioner.

No appearance for respondent.

Mary Theresa Gardier, with her, Joseph A. O'Brien, Oliver, Price & Rhodes, for intervenor, Mercy Hospital.

Judges MacPhail and Colins, and Senior Judge Rogers, sitting as a panel of three. Opinion by Judge MacPhail. Judge Colins dissents.

Author: Macphail

[ 98 Pa. Commw. Page 605]

Mary Kuna (Petitioner) appeals from an order of the Unemployment Compensation Board of Review (Board) which denied her benefits. We affirm.

[ 98 Pa. Commw. Page 606]

On May 25, 1984, a referee's decision was issued which denied Petitioner benefits under Sections 401(d)(1) and 402(b) of the Unemployment Compensation Law (Law).*fn1 The Board affirmed the referee's decision. Petitioner then appealed the Board's affirmance to this Court.*fn2 On January 28, 1985, without any argument in the case being made to this Court, Petitioner's attorney and the Acting Deputy Chief Counsel of the Board entered into a stipulation to the effect that the appeal be remanded to the Board for the taking of additional testimony. By order dated February 7, 1985, this Court remanded the case to the Board "for the purpose of taking additional testimony and reconsidering its order in the claim of Mary Kuna for unemployment benefits, and thereafter to issue a new decision as it shall deem proper and necessary. . . ." The order reserved Petitioner's right to appeal the new decision to this Court.

On February 13, 1985, the Board remanded the case to the referee for the taking of additional testimony. The Board, after reviewing the newly taken testimony, denied benefits once again on May 13, 1985. It is Petitioner's appeal from this denial which we now address.

Petitioner's counsel argues that the case should be remanded once again so that more testimony can be taken. He makes this argument on the basis of the fact that the Notice of Hearing on Board Appeal, which was mailed to Petitioner, her employer and her employer's counsel giving them notice of the remand hearing before the referee, was not mailed to him. He also asserts that the Board acted improperly in denying his request for a continuance so that he could properly

[ 98 Pa. Commw. Page 607]

    prepare the case, presumably because lack of notice prevented him from doing so. We cannot agree that the case must be remanded.

This Court may override a referee's refusal to grant a continuance in an unemployment compensation case only if there has been clear showing of an abuse of discretion. Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 463 A.2d 1298 (1983). The question facing us now is whether the referee abused his discretion in failing to grant the continuance in light of the fact that notice of the hearing was sent to Petitioner but not to Petitioner's counsel.

The pertinent Board regulation reads ...


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