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decided: May 3, 1989.


Appeal from the Order of the Unemployment Compensation Board of Review, in the case of In Re: Claim of Richard Liebel, No. B-267645.


A. Martin Herring, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Michael I. Levin, Cleckner and Fearen, for intervenor, Middle Bucks Area Vocational Technical School.

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

Author: Doyle

[ 125 Pa. Commw. Page 566]

Before this Court is an appeal by Richard Liebel (Claimant) from an order of the Unemployment Compensation Board of Review (Board) denying Claimant's request for benefits pursuant to Sections 401, 4(u) and 402 (e) of the Unemployment Compensation Law (Law).*fn1

The Board made the following relevant factual findings. Claimant was last employed by the Middle Bucks

[ 125 Pa. Commw. Page 567]

Vocational-Technical School (Employer) from September 1976 to June 16, 1987. He was originally hired by Employer to teach in its auto mechanic program, but as a result of declining enrollment in that program, he assumed the duties of part-time teacher in the graphic occupations program (Program). Claimant, however, was not properly trained in all phases of the Program and refused to complete his training. Claimant also failed to develop a competency program for his students as required by the Department of Education. Additionally, he did not follow Employer's policy and instructions regarding an art sale of items accumulated in the Program. Claimant was subsequently dismissed from his position with Employer.

Claimant filed for unemployment compensation benefits with the Office of Employment Security (OES). The OES issued a determination holding that Claimant had not committed willful misconduct, as defined in Section 402(e) of the Law, but that he was ineligible under Section 401, and 4(u). Claimant then filed a timely appeal, and a referee's hearing was scheduled. All parties requested a continuance of the hearing but it was denied. The referee then based his ruling to deny benefits on the available evidence of record and affirmed the decision of the OES.

Both Claimant and Employer appealed the referee's decision to the Board, and Employer requested that the Board remand the case to the referee for additional testimony. The Board then issued an order scheduling a remand hearing for November 13, 1987. Both Employer and Claimant again requested a continuance. The hearing was rescheduled for December 11, 1987, a date which was agreed upon by all parties.

On November 19, 1987, Claimant's new counsel*fn2 requested a continuance, stating that he had another

[ 125 Pa. Commw. Page 568]

    hearing on that date. The referee denied that request. On December 1, 1987, Claimant's counsel made a second request for a continuance; again it was denied. On December 10, 1987, Claimant's original counsel sent a letter to the referee again requesting a continuance stating that a "serious personal problem" required Claimant's second attorney's attention on that date.*fn3 The referee, however, again denied his request. Claimant's counsel then called the referee to state that neither he, Claimant's new attorney, nor Claimant would be able to attend the hearing.

On December 11, 1987, the hearing was conducted with only Employer's counsel and witnesses present. As a result, the Board denied benefits on the basis of both Section 402(e) and Sections 401, 4(u) of the Law. This appeal followed.

The issue before this Court is quite narrow. Claimant contends that the referee's decision to deny a continuance for the last hearing date, December 11, 1987, was an

[ 125 Pa. Commw. Page 569]

    abuse of discretion, and that the denial of this continuance deprived Claimant of his right to counsel. This Court does not agree.

It is well settled that this Court may override the judgments of a referee in an unemployment compensation case as to whether or not to grant a continuance only if there has been a clear showing of an abuse of discretion. Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 463 A.2d 1298 (1983). Furthermore, a "continuance of a hearing will be granted only for proper cause and upon the terms as the tribunal may consider proper." 34 Pa. Code. ยง 101.23(a) (emphasis added). A careful examination of the record in this case leads us to conclude that the referee did not abuse his discretion.

Claimant's counsel's first request for a continuance of the December 11, 1987 hearing was on November 19, 1987. This request was made because Claimant's counsel had another hearing on that date; counsel also stated, however, that he would attend the Claimant's hearing if his continuance request was denied. The referee denied this request as both parties had mutually agreed to that date. On December 4, 1987, Claimant's counsel again requested (by telephone) a continuance; the reason stated was for "a personal matter which he [could not] go into." This request was extremely vague, and certainly did not supply any information which would demonstrate the existence of "proper cause." Finally, on the day before the hearing, the referee received a letter from Claimant's original counsel advising the referee of a personal family emergency relating to Claimant's second counsel on the date of the hearing. The referee again denied his request.

Due process standards do not guarantee a claimant a right to a continuance, even if for good cause, if he fails to request it in a timely fashion or in a manner consistent

[ 125 Pa. Commw. Page 570]

    with reasonable procedural rules. Id. The second attorney's telephone calls to the referee requesting a continuance were vague as to the specific reasons for the continuance. The referee properly deemed them to be insufficient to warrant the relief sought. While the information in the letter received on December 10, 1987 could have been viewed as "proper cause" for the continuance, the last minute basis for the request*fn4 in a case where numerous continuances had been sought was also a fact to be considered along with the fact that there had been a mutually agreed upon hearing date. Considering all of the facts, we cannot say that the referee abused his discretion in denying the continuance.

Therefore, since Claimant's request for a continuance was properly denied, we believe Claimant's argument that he was denied his right to counsel to be without merit.

Accordingly, we affirm the order of the Board.


Now, May 3, 1989, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.



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