66 Pa. Commw. 455 | Pa. Commw. Ct. | 1982
Opinion by
Sharon J. Bennett (claimant) appeals an order of the Unemployment Compensation Board of Review (Board) affirming a referee’s decision to deny her benefits under Section 402(b) (1) of the Pennsylvania Compensation Law.
The claimant was last employed by the Stettler Hotel as a bartender and had held that position for seven months. On January 3, 1980, she quit her job and subsequently applied for benefits with the Office of Employment Security (Office), but her application was denied on the basis that she did not establish a necessitous or compelling reason for voluntarily ter
Before us the claimant argues that the referee’s three findings of fact were insufficient upon which to base his conclusion that benefits be denied. Additionally, she argues that she was not afforded a full and fair hearing inasmuch as the referee failed to assist her in developing relevant and sufficient testimony at the hearing concerning, inter alia, alleged sexual harassment by patrons of which her employer was aware but did not remedy, physical abuse, and illegal underage drinking.
The rules of practice and procedure governing hearings before referees in unemployment compensation cases provide at 34 Pa. Code §101.21(a) that:
In any hearing the tribunal may examine the parties and their witnesses. Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties. (Emphasis added.)
The referee has a responsibility, therefore, to assist a pro se claimant at a hearing so that the facts of the
Our review of tbe very sparse record and of tbe two-page bearing transcript in this case — of wbicb only less than half of a page is germane to tbe Section of tbe Act here concerned
We will therefore reverse the order of the Board and remand this matter to them for a full and fair hearing consistent with this opinion.
Order
And Now, this 12th day of May, 1982, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed and remanded to them for an evidentiary hearing consistent with this opinion.
Order
And Now, this 17th day of May, 1982, footnote five of our opinion filed May 12, 1982, in the above-captioned matter shall be amended to read as follows:
*460 5 We have recognized that such failure by a referee to advise a pro se claimant as to his/her rights would be a basis for a remand. See Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 427 A.2d 631 (1981); Turner v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 489, 442 A.2d 1212 (1982).
(Act) Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b) (1), which in pertinent part states that a claimant shall be ineligible for benefits for any week “[in] which his unemployment is due to voluntarily leaving wort without cause of a necessitous and compelling nature.”
DeMeno v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 137, 413 A.2d 796 (1980).
Section 402(b)(1).
The claimant did have the assistance of counsel before this Court.
Normally, such failure by a referee to advise a pro se claimant as to his/her rights would be a basis for a remand. See Unemployment Compensation Board of Review v. Ceja, 493 Pa. 588, 427 A.2d 631 (1981); Turner v. Unemployment Compensation Board of Review, 65 Pa. Commonwealth Ct. 489, 442 A.2d 1212 (1982). In Peda v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 184, 439 A.2d 888 (1982), we held that a claimant must, at the very least, raise the referee’s failure to advise him of his rights, at oral arguments before this Court only if it could not have been raised by due diligence below. Here, however, the claimant did not raise such failure before the Board or before this Court in her peti
The referee knew or should have known, from the summary of interview from the Office and from testimony given by the claimant at the hearing, that she had reasons in addition to her marital problems for quitting (e.g., sexual harrassment, physical abuse, etc.) and should have more thoroughly and reasonably extracted testimony on these points in the interests of fairness as contemplated by 34 Pa. Code §101.21 (a).