82 Pa. Commw. 175 | Pa. Commw. Ct. | 1984
Opinion by
Edward J. Finley (Claimant) appeals here from an order of the Unemployment Compensation Board of Review (Board) denying him benefits for willful misconduct under Section 402(e) of the Unemployment Compensation Law
The Claimant was discharged from his employment as a taxi driver for the Taxi Radio Company in June 1982, for unexcused and unreported absences from his work from May 28, 1982 until June 1, 1982. Prior to these unreported absences the Claimant had been warned and threatened with discharge for unexcused absences. The Claimant applied for unemployment benefits which were denied by the Office of Employment Security. The Claimant appealed this denial, and a hearing was convened before a referee on July
The Claimant does not challenge the Board’s determination that his actions, if true, would constitute willful misconduct under Section 402(e), but rather asserts that he is entitled to a remand upon the basis that the referee denied him due process by not advising him of his right to present witnesses and by not aiding him in cross-examining his employer, in violation of 34 Pa. Code §101.21 (a).
Where a referee has failed to properly advise an uncounseled claimant of his rights, this Court will order a remand unless it can be shown that the referee’s omissions were not prejudicial to the claimant or did not materially affect his rights. Linke v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 117, 450 A.2d 312 (1982), Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 275, 431 A.2d 378 (1981), and Snow v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 396, 433 A.2d 922 (1981).
In the present case, we must conclude that the referee’s failure to advise the Claimant of his right
Reversed and remanded.
Order
And Now, this 27th day of April, 1984, the order of the Unemployment Compensation Board of Review, dated August 19, 1982, No. B-209026, is reversed and the ease is remanded for further proceedings not inconsistent with this opinion. Jurisdiction relinquished.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (e).
Section 101.21(a) of Title 34 of the Pa. Code provides as follows:
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.
Due to our disposition of this case, we need not and do not address the Claimant’s other contention as to whether or not the referee’s failure to aid him with the cross-examination of the employer was also prejudicial error.