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HOWARD R. HAMILTON v. COMMONWEALTH PENNSYLVANIA (10/22/87)

decided: October 22, 1987.

HOWARD R. HAMILTON, 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 Howard R. Hamilton, No. B-246975.

COUNSEL

Robert Senville, for petitioner.

Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 110 Pa. Commw. Page 385]

Howard R. Hamilton (petitioner) seeks review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's decision denying petitioner benefits pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). Specifically, petitioner was fired by Wackenhut Corporation (employer) for alleged insubordination on the work site.

Petitioner's major defense to these accusations is that the insubordination did not occur and that he was fired due to prior complaints made to various local and state agencies concerning his denial of a promotion based solely on racial reasons.

In his petition for review, petitioner is seeking a remand based upon a single assignment of error that the referee erred as a matter of law or abused his discretion when he denied petitioner's request to subpoena an investigative

[ 110 Pa. Commw. Page 386]

    officer of the Human Relations Commission of the City of Reading. The Board's opinion does not indicate whether or not the request for the subpoena was granted or denied by the referee. Initially, we must remand to the Board for a finding on this critical issue due to apparent inconsistencies in the record.

The record contains an exhibit, marked R-4, which is a letter dated October 29, 1985, from petitioner's attorney to referee Matthew J. Ercolino of the Board. This letter, stamped as received by the referee's office on October 29, 1985, states in pertinent part:

This letter confirms that on October 29, 1985, I called your office and requested a subpoena be issued upon Carlos Soto, an investigative officer of the Human Relations Council of the City of Reading. The address of the Human Relations Council is 230 North 5th Street, Room 901, Reading, Pennsylvania, 19601. This subpoena would be issued in the case of Howard R. Hamilton, 434 Buttonwood Street, Reading, Pennsylvania, 19601, whose hearing is scheduled for October 31, 1985 at 10:15 a.m.

This letter further confirms that I explained my reasons for requesting this subpoena to your office. Specifically, the testimony to be presented by Mr. Soto would indicate that the employer's reason for discharging Mr. Soto as explained to the Human Relations council is different than the employer's reason for terminating Mr. Soto as explained to the Office of Employment Security. These ...


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