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KENNETH R. DEHUS v. COMMONWEALTH PENNSYLVANIA (08/03/88)

decided: August 3, 1988.

KENNETH R. DEHUS, 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 Kenneth R. Dehus, No. B-256361.

COUNSEL

Randal E. McCamey, for petitioner.

Bernadette Paul, Assistant Counsel, with her, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 118 Pa. Commw. Page 345]

This is an appeal by Kenneth R. Dehus (Claimant), from the Order of the Unemployment Compensation Board of Review (Board), dated March 5, 1987, which affirmed the decision of the Referee denying unemployment compensation benefits due to willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Law).*fn1 We affirm.

Claimant was employed as a Vice-President and plant coordinator for Dura-Corp (Employer) from September 1, 1984, until his discharge on May 12, 1986.*fn2

[ 118 Pa. Commw. Page 346]

He had been hired to coordinate the opening of operations at the Employer's new plant. During the month of April, 1986, Claimant frequently was absent from work. Claimant was discharged as a result of his alleged interference with the work of certain German technicians.

The Office of Employment Security (OES) issued a notice of determination denying Claimant compensation benefits due to willful misconduct. Claimant appealed from that determination, and the Referee affirmed. Claimant appealed to the Board which affirmed the Referee's decision, and Claimant timely filed an appeal with this Court.

Claimant maintains that the Board erred by denying his request for a remand for the taking of additional testimony. He also maintains that certain findings of the Board were not supported by substantial evidence.

Our scope of review is well established. We are limited to affirming the Board's decision unless there was an error of law, a party's constitutional rights were violated, or if the necessary findings of fact are not supported by substantial evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

[ 118 Pa. Commw. Page 347]

We first address Claimant's procedural contention that the Board abused its discretion by failing to remand the case for the taking of additional testimony. Claimant alleges that the matter should have been remanded because he had no notice prior to the Referee's hearing of the specific charges of willful misconduct about which Employer testified and based upon which the Referee denied compensation; that the lack of notice prevented him from preparing a defense; and that, consequently, his due process rights were violated.

A review of the procedural history corroborates Claimant's allegations, but it also reveals a crucial defect in his plaint. Claimant received a Notice of Determination from the OES advising him that his application was denied on the basis of willful misconduct, Section 402(d) of the Law. Under the "Findings of Fact" section, the Claimant was advised that the reasons for his separation from employment were considered willful misconduct because "of the actions he performed which were not in the employers [sic] best interests." Claimant was represented by counsel at the hearing before the Referee. Claimant neither objected to the lack of notice in the Notice of Determination, nor requested a continuance. At no time during the hearing did Claimant state that the lack of notice prejudiced him, either by preventing him from issuing subpoenas to witnesses or by preparing a defense.*fn3

[ 118 Pa. Commw. Page 348]

Claimant's attorney first raised the issue of lack of notice in a letter which he sent to the Referee dated December 17, 1986, two days after the December 15 hearing. (December 17, 1986, was also the mailing date of the Referee's decision. Presumably the two missives crossed each other in the mail.) In this letter Claimant's attorney mentioned that Claimant had not received notice of the pertinent issues, and he stated that Claimant was willing to provide further testimony, but he did not request that further testimony be ...


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