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GEORGE W. THOMAS v. COMMONWEALTH PENNSYLVANIA (06/22/88)

decided: June 22, 1988.

GEORGE W. THOMAS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of George W. Thomas, No. B-250931.

COUNSEL

Michelle R. Terry, Delaware County Legal Assistance Association, Inc., for petitioner.

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

[ 117 Pa. Commw. Page 217]

George Thomas (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision finding him ineligible for compensation on account of willful misconduct and his unavailability for suitable work pursuant to Sections 402(e) and 401(d)(1) of the Unemployment Compensation Law (Law),*fn1 and assessing a fault overpayment under Section 804(a) of the Law, 43 P.S. § 874(a).

Claimant had been employed by Wilgro Services, Inc. (employer) as a service mechanic when he was discharged for failing to maintain a valid driver's license, a requirement of his position, and for operating the employer's vehicle without a license. Claimant received compensation for several weeks until the Office of Employment Security (OES) determined that he had been discharged for fault and that his incarceration during the weeks at issue rendered him unavailable for suitable work. As noted, the OES assessed a fault overpayment and ordered recoupment of compensation.

Claimant appealed this decision and the matter was scheduled for a hearing before a referee on April 29, 1986. Notice of the hearing was mailed to claimant at the Delaware County Prison and, by letter dated April 23, 1986, claimant informed the referee that his incarceration precluded his attendance at the hearing. He requested a continuance and repeated such request by telephone call of the following day, then stating that he would not be released from prison until the end of the year. The referee denied claimant's request for a continuance, instead offering him the opportunity of testifying by telephone. The claimant refused such option, indicating that he wanted to face his employer at the hearing.

[ 117 Pa. Commw. Page 218]

Following a hearing, attended solely by a representative of the employer, the referee issued a decision which affirmed the OES' denial of compensation and the assessment of a fault overpayment. The Board affirmed the referee's decision and this appeal followed.

Preliminarily, we note that this Court may overrule the judgment of a referee as to whether or not to grant a continuance only upon a clear showing of an abuse of discretion. Viglino v. Unemployment Compensation Board of Review, 105 Pa. Commonwealth Ct. 616, 525 A.2d 450 (1987). Moreover, a referee, in evaluating a request for a continuance, is guided by the regulation found at 34 Pa. Code § 101.23(a) providing that the "[c]ontinuance of a hearing will be granted only for proper cause and upon the terms as the tribunal may consider proper."

Claimant now contends that the referee's refusal to continue the hearing despite his obvious inablility to attend was a denial of due process and an abuse of discretion. Moreover, claimant asserts he was doubly entitled to a continuance because he had refused to testify by telephone, citing our decision in Knisley v. Unemployment Compensation Board of Review, 93 Pa. Commonwealth Ct. 519, 501 A.2d 1180 (1985). Knisley, of course, emphasizes the potential for procedural irregularities in telephonic ...


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