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JUDITH M. SHEGAN v. COMMONWEALTH PENNSYLVANIA (09/28/89)

decided: September 28, 1989.

JUDITH M. SHEGAN, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



PETITION FOR REVIEW (UNEMPLOYMENT COMPENSATION).

COUNSEL

Edward Van Stevenson, Jr., for petitioner.

James K. Bradley, Asst. Counsel, Pittsburgh, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Doyle and McGinley, JJ., and Barbieri, Senior Judge.

Author: Barbieri

[ 129 Pa. Commw. Page 64]

Claimant, Judith M. Shegan, petitions for review of the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's decision denying her unemployment compensation benefits for voluntarily quitting her job pursuant to Section 402(b) of the Pennsylvania Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(b).*fn1 The issues before this Court are whether the referee abused his discretion and abrogated Claimant's due process right to a fair hearing in refusing to grant her request for a continuance or telephonic hearing; and if not, whether substantial evidence supported the Board's findings. The Board's order is vacated and this matter is remanded.

Claimant, a registered nurse, was employed part-time by Forbes Health System (Employer) from November 1, 1981 to August 25, 1988. Claimant contends that she was forced to resign her position while the Board maintains that she voluntarily quit her job without cause of a necessitous and compelling nature.

Regardless, after her separation from employment, Claimant applied for unemployment compensation benefits with the Office of Employment Security (OES) which determined her to be ineligible for benefits by virtue of Section 402(b) of the Law. Upon timely appeal, Claimant received

[ 129 Pa. Commw. Page 65]

    notice that a hearing before a referee had been scheduled for October 27, 1988 to review OES' determination. On October 20th, Claimant contacted the referee's office staff seeking a postponement of the hearing since she would be searching for employment in Florida from October 25th to November 8th. Claimant indicated, however, that she would discuss with her attorney the possibility of testifying by telephone from Florida. Claimant's attorney then contacted the referee's office staff on October 21st, at which time he was informed that a telephonic hearing could be arranged, but which offer he declined as he intended to subpoena documents. C.R., Item No. 7, Referee Exh. Nos. 3, 4. Claimant's counsel was also informed on October 21st that the referee denied his request to postpone the October 27th hearing. C.R., Item No. 7, Referee Exh. No. 4; C.R., Item No. 8, Claimant's Exh. No. 1.

At the hearing, Claimant's attorney attempted to present Claimant's testimony by telephone, which attempt was rejected by the referee on the ground that a telephonic hearing had not been approved. Upon the referee's repeated refusal to allow Claimant's testimony by telephone, Claimant's attorney objected to continuation of the hearing and requested a new hearing date, which was denied by the referee. N.T., pp. 1-3.

After the hearing, wherein Employer offered the only testimony, the referee affirmed OES' denial of benefits. Upon further appeal, the Board affirmed the referee's decision and Claimant petitioned this Court for review.*fn2

Claimant contends that the referee abused his discretion and denied her a fair hearing in refusing to grant her a continuance or allow her ...


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