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PAUL BEAMER v. COMMONWEALTH PENNSYLVANIA (01/23/89)

decided: January 23, 1989.

PAUL BEAMER, 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 Paul Beamer, No. B-260504.

COUNSEL

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 ...


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