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decided: January 23, 1989.


Appeal from the order of the Unemployment Compensation Board of Review, in the case of Paul Beamer, No. B-260504.


Alba E. Martinez, for petitioner.

Gary L. Kelley, Assistant Counsel, with him, 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. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 123 Pa. Commw. Page 57]

Paul Beamer (Beamer) appeals from a decision of the Unemployment Compensation Board of Review (Board) affirming the Referee's denial of benefits pursuant to Section 402(b) of the Unemployment Compensation Law (Law),*fn1 43 P.S. § 802(b). We affirm.

Beamer was last employed as a painter by Stirring Rod Painting (Employer) for approximately seven months, and his last day at work was October 10, 1986. On October 13, 1986, Beamer did not report to work due to illness. Beamer advised Employer that he would not be working during that work week. After he recovered, Beamer attempted to reach Employer to obtain a work assignment, leaving several messages with an answering service, and with a fellow employee, Paul Brady (Brady). Employer attempted to reach Beamer, but was unable to do so. Beamer subsequently assumed that his services were no longer required and he applied for unemployment compensation benefits.

The Office of Employment Security (OES) denied benefits based upon section 402(b) of the Law, 43 P.S. § 802(b), levied a fault overpayment based upon Section

[ 123 Pa. Commw. Page 58804]

(a) of the Law, 43 P.S. § 874, and levied four penalty weeks under Section 801(b) of the Law, 43 P.S. § 871.

Beamer appealed the OES determination and a hearing was scheduled for March 9, 1987, before a Referee. Prior to the hearing, Beamer requested and received two subpoenas,*fn2 one subpoena for records from the answering service of calls he allegedly made to the Employer, and the other subpoena for Brady. Neither Brady nor a representative for the answering service appeared. The parties dispute the reasons for the witnesses' absence. Employer testified that the answering service was unable to supply the requested documents because they had been destroyed. Employer also testified that Beamer told Brady that his presence would not be needed if he signed a statement. Beamer contends that Employer prevented the witnesses from attending the hearing. Beamer never requested that the subpoenas be enforced, and the Referee did not take action to have the subpoenas enforced.*fn3

The Referee affirmed the OES determination and denied benefits pursuant to Section 402(b) of the Law, but the Referee modified the fault overpayment to a nonfault overpayment and assessed no penalty weeks. Beamer appealed to the Board, which affirmed the

[ 123 Pa. Commw. Page 59]

Referee's decision and denied Beamer's request that the record be remanded for additional testimony.

Beamer raises only one issue on appeal, that the Referee's failure to advise Beamer of his right to enforcement of the subpoenas constituted a denial of a full and fair hearing in violation of due process and of Section 507 of the Law, 43 P.S. § 827. Where the Referee or Board refuses to seek enforcement of a subpoena, our scope of review is limited to determining whether there was an abuse of discretion or an error of law. Miller v. Unemployment Compensation Board of Review, 99 Pa. Commonwealth Ct. 137, 512 A.2d 797 (1986).

Beamer maintains that this matter is factually similar to Miller. In that case the claimant was discharged for leaving work early and leaving the employer shorthanded on his busiest night of the year. The Board issued a subpoena for the timecards of other employees, but they were not produced. This Court held in that matter that the Referee and the Board erred as a matter of law by failing to take steps to enforce the subpoena issued to the employer because the timecards would tend to either substantiate or contradict the manager's assertions that the claimant's actions left him shorthanded on the night of the incident. We held that such evidence would be "highly relevant and non-duplicative." Miller at 140, 512 A.2d at 799.

The considerations in the present controversy are entirely different. Not only would the testimony of the missing witnesses and documents be duplicative of evidence already of record, but the allegations which Beamer states they would corroborate are not even in dispute. Beamer testified that he left messages with his Employer's answering service numerous times, but that the Employer never returned his calls.*fn4 Beamer alleges

[ 123 Pa. Commw. Page 60]

    that the "witnesses and documents would have elaborated upon and substantiated his 'good faith' and reasonableness by establishing the numerous contacts made with the Employer's answering service, and the numerous contacts made through a co-worker, Paul Brady, with no response from the employer."*fn5

Beamer's efforts to contact Employer are not in dispute. Employer acknowledged that Beamer had attempted to reach him, both via the answering service and Paul Brady.*fn6 Beamer introduced into evidence the hearsay statement of Paul Brady without objection by Employer.*fn7 The Board and the Referee found that Beamer had left a message advising Employer that "he wished the employer to get back to him regarding his return to work."*fn8 Beamer's lack of good faith in attempting to return to work was not based on a failure to contact the Employer; Beamer failed to preserve the employment relationship by either appearing at the work site or personally contacting the Employer. Beamer merely requested that Employer telephone him, but he was not present to receive the numerous calls which Employer placed.*fn9

We agree with the Board's contention that this matter is factually similar to the case of Ehmann v. Unemployment Compensation Board of Review, 86 Pa. Commonwealth Ct. 18, 483 A.2d 587 (1984). In that case the claimant claimed that she was compelled to quit her job as a result of sexual harassment. The witness she subpoenaed

[ 123 Pa. Commw. Page 61]

    refused to appear, but the Referee did not advise her that the Board could take steps to have the subpoena enforced. We held that the Referee's failure to notify her of his ability to enforce a subpoena was harmless error, stating as follows:

Even if the witness had testified, confirming all claimant had alleged, this testimony would have only been cumulative. There was no factual dispute between claimant and her employer as to the events surrounding her departure. Therefore, the witness's appearance would not have altered the outcome.

Ehmann at 22, 483 A.2d at 589.

In the matter sub judice, the Referee's failure to notify Beamer of the Board's ability to enforce the subpoenas was harmless error.*fn10 Consequently, as the Board's Findings of Fact and legal conclusions are unchallenged and undisputed we affirm the decision of the Board.


And Now, this 23rd day of January, 1989, the decision of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.

Judge MacPhail did not participate in the decision in this case.



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