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FRANCIS J. FLEEGER v. COMMONWEALTH PENNSYLVANIA (06/24/87)

decided: June 24, 1987.

FRANCIS J. FLEEGER, 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 Francis J. Fleeger, No. B-248707.

COUNSEL

Frank J. Piatek, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

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

Author: Barbieri

[ 107 Pa. Commw. Page 85]

Francis J. Fleeger (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination that he is ineligible for benefits under Section 402(b) of the Unemployment Compensation Law.*fn1

Claimant voluntarily terminated his employment as a truck driver with J. B. Hunt Transport Company (Employer) on August 17, 1985. Claimant alleges that during the six months he worked for the Employer he was required to drive excessive hours in violation of Federal Motor Carrier Safety Regulations of the U.S. Department of Transportation.*fn2

The Board found that Claimant had complained to his dispatcher that he was being required to drive excessive hours and was instructed that all deliveries were

[ 107 Pa. Commw. Page 86]

    to be made on time, regardless of the number of hours required. Claimant testified that he complained to three (3) different dispatchers and also informed a supervisor that he was expected to violate federal safety regulations.*fn3 Claimant voluntarily left his employment as a direct result of the alleged violations.

There were a total of three (3) hearings before the referee. At the initial hearing on October 2, 1985, Claimant testified but the Employer, who is located out of state, did not appear.*fn4 The referee decided to continue the matter to receive the Employer's testimony and a teleconference hearing was held on October 21, 1985. On that date, the referee noted she had neglected to forward the Claimant's exhibits to the Employer. At the request of the Employer, the referee agreed to continue the hearing until November 5, 1985, at which time the Employer's terminal manager testified. The referee determined that Claimant's voluntary quit was not for cause of a necessitous and compelling nature and the Board affirmed, adopting the referee's findings of fact.

Claimant contends on appeal that it was an abuse of discretion for the referee to reschedule a second hearing to permit the Employer to testify,*fn5 the Board erred in concluding that he did not have a necessitous and compelling reason to quit, and the Board failed to make necessary findings of fact.

[ 107 Pa. Commw. Page 87]

Our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law has been committed, or any necessary findings of fact are not supported by substantial evidence. Pacini v. Unemployment Compensation Board of Review, 102 Pa. Commonwealth Ct. 355, 518 A.2d 606 (1986).

With regard to the issue of whether it was an abuse of discretion for the referee to continue the hearing to permit the Employer to testify, the record reveals that Claimant failed to object to the continuance before the referee and neglected to raise the matter before the Board. Therefore, pursuant to Pa. R.A.P. 1551(a), the issue is not properly before this Court. ...


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