Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Edward R. Merida, No. B-244629.
Edward Van Stevenson, Jr., Neighborhood Legal Services Association, for petitioner.
Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle. Dissenting Opinion by Judge Barry.
[ 117 Pa. Commw. Page 182]
By order dated October 27, 1987 this Court granted reconsideration of our decision in the above-captioned matter. Our original opinion, filed on August 20, 1987, held that Edward R. Merida (Claimant) had preserved his right to object to a second hearing before the referee and we remanded to the Unemployment Compensation Board of Review (Board) for specific factual findings related to the employer's absence from the first hearing and whether that hearing should have been interrupted for the appearance of the employer's representatives. Subsequent to the filing of our opinion, the Board petitioned for reconsideration arguing that Claimant had waived the issue of the propriety of the second hearing by failing to raise it specifically in his appeal to the Board. The Board's petition was granted and supplemental briefs were filed. The case was then argued before the Court on December 16, 1987.
The underlying merits are not particularly pertinent to the precise issue before us so we shall mention them only briefly. Claimant was employed by Prudential Maintenance Service as a maintenance worker. He was
[ 117 Pa. Commw. Page 183]
discharged after his supervisor discovered certain discrepancies between his sign-in times on the building register and his sign-in times on his payroll record. The Office of Employment Security (OES) denied his claim for benefits on the basis that he had committed disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation Law,*fn1 43 P.S. § 802(e). Claimant appealed to the referee and a hearing was conducted. The employer's witnesses did not participate in that hearing and the parties apparently dispute why that is so. After the original hearing was closed it was apparently brought to the referee's attention that employer's witnesses had arrived for the hearing and had not been ushered into the hearing room. The referee, therefore, directed that a second hearing be scheduled. At the beginning of that hearing Claimant's counsel objected (at the referee level) to the second hearing being held.*fn2 The hearing, however, was held. The referee subsequently issued a determination denying benefits. That decision did not mention the propriety
[ 117 Pa. Commw. Page 184]
of the second hearing. Claimant then appealed to the Board. On the Board's appeal form the appealing party is directed to state the "reasons for filing this appeal." In the appropriate space Claimant wrote only, "I don't agree with this decision." No additional explanatory information was attached.
The Board upheld the referee on the merits, thus, affirming the denial of benefits. But, in dicta, it also wrote:
On appeal, the claimant has not objected to the second hearing. We nonetheless note for the record that the record of the second hearing reveals that the employer witnesses apparently came to the Referee's office during the first hearing but somehow were not admitted to the hearing room. The first hearing was then terminated, and counsel for the claimant even admitted seeing the employer representatives on their way out. We infer from these facts that the employer representatives should have been admitted to the first hearing and that the hearing should have been interrupted. Even assuming that the employer representatives arrived a few minutes late to the first hearing, the ...