86 Pa. Commw. 251 | Pa. Commw. Ct. | 1984
Opinion by
Lorenzo M. Williams (petitioner) petitions for review of the order of the Unemployment Compensation Board of Review (board) which affirmed the referee’s decision denying benefits under Section 402(e) of the Unemployment Compensation Law.
Given this issue, it is necessary to detail the pertinent procedural history of this case. After the petitioner appealed the determination of the Office of Employment Security, the referee scheduled a hearing for October 5, 1982, with due notice to the parties. On September 30, 1982, the petitioner’s attorney requested a continuance due to a scheduling conflict on October 5, 1982, in federal court. The referee granted this request and issued a continuance notice. On October 13, 1982, the referee mailed new hearing notices to the parties advising that the hearing had been re-scheduled for October 25, 1982. Again, on October 18, 1982, the petitioner’s attorney requested a continuance because he had arrangements to be out of town from October 25, 1982 until November 8, 1982. The referee denied this request. The petitioner was unaware of his at
Appearing on October 25, 1982 were tbe petitioner and two employer witnesses, Mr. Birzes, the petitioner’s foreman, and Ms. Assenmacber, an employee benefits specialist. After bis opening remarks and tbe swearing of tbe witnesses, tbe referee initiated tbe following dialogue:
Now are you all aware of your right to representation by counsel and to present witnesses to testify on your behalf and to cross-examine adverse witnesses?
EW2 (Assenmacber): Yes.
QR: You must answer for it to (sic).
EW1 (Birzes): Yes.
QR: Are you willing to proceed without counsel and without additional witnesses f
EW2: Yes.
AC: No.
QR: No, why not?
AC: (inaudible.)
QR: Pardon.
AC: (unintelligible.) Counsel’s here to represent me.
QR: I
AC: He’s supposed to be here to represent me.
QR: He’s supposed to be here. Did you contact him?
AC: Yes I did.
QR: When did you contact him?
AC: I contacted him last week.
QR: When was tbe first time you contacted him ?
AC: The first time I contacted him was last week on a Tuesday.
*254 QR: On a Tuesday last week?
AO: Yes.
QR: All right. Today’s
AC: I tried to reach him, but he was out. He was supposed to have called me back but he never did.
QR: And you called him on the 19th?
AC: Yes.
QR: And he hasn’t called you back since?
AC: No.
QR: You haven’t spoke to him?
AC: No.
QR: Have you ever spoken to him?
AC: Yes, once, when I went down to see him.
QR: When was that?
AC: About a month ago.
QR: About a month ago ?
AC: Yeh.
QR: Had you received a notice of hearing, is that why you went to see him?
AC: Yes, I did.
QR: Ok. So you saw him a month ago and what instructions did he give you as far as getting back with him again.
AC: He told me he was going to be here and
QR: And that was a month ago, he told you he would be here?
AC: Yes. He told me and I called him back to remind him (unintelligible.) In other words, he told me not to worry, he would be here (unintelligible.)
QR: All right.
AC: (unintelligible.)
*255 QR: And you called Mm on the 19th of October to remind him?
AC: Yes, I did.
QR: And you didn’t reach him.
AC: I didn’t reach him.
QR: Did you reach his secretary?
AC: I talked to his secretary and his secretary was explaining to me that he was out to lunch and he would be back.
QR: All right, well I’m not going to continue this case because your attorney doesn’t see fit to attend the hearing which he was supposed to attend and which he apparently is aware of, so I’m going to proceed without him. . . . (Emphasis added.)
In Hoffman v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 108, 480 A.2d 1036 (1981), we reaffirmed Katz v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 427, 430 A.2d 354 (1981), which held that a referee’s failure to advise an uncounseled claimant of his right to be represented by counsel, to cross-examine adverse witnesses and to offer witnesses in his behalf violated the claimant’s due process rights and the requirements of 34 Pa. Code §101.21 (a)
Finding no prejudice to an uncounseled claimant who was amply assisted by the referee in cross-examining the employer’s witnesses and in presenting his own version of the relevant facts, we saw no need for a remand in Rodgers v. Unemployment Compensation Board of Review, 83 Pa. Commonwealth Ct. 248, 476 A.2d 1014 (1984). We noted that at the outset of the hearing, the referee advised the claimant of his rights and specifically asked whether the claimant wished to waive his right to counsel and proceed with the hearing to which the claimant responded affirmatively. In rejecting the prejudice argument we stated that
[a] claimant who elects to proceed without legal representation and who receives all the assistance from the tribunal due under 34 Pa. Code §101.21 (a), cannot be heard to complain on appeal that his case might have been presented more effectively or with greater credibility with the assistance of counsel.
Id. at 251, 476 A.2d at 1016. Also in Losch v. Unemployment Compensation Board of Review, 75 Pa. Com
Contrary to the foregoing cases, we are now faced with a situation where the petitioner refused to waive his right to legal representation after making a bona fide attempt to have counsel at the hearing, and where the petitioner apparently was without fault or complicity in his counsel’s failure to appear.
Accordingly, we must vacate the order of the board and remand for further proceedings.
Order
And Now, this 30th day of November, 1984, the order of the Unemployment Compensation Board of Review, B-213024, is hereby vacated and this matter is remanded to the board for further proceedings consistent with this opinion.
Jurisdiction relinquished.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (e).
§101.21 Conduct of hearings.
(a) 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.
In the instant case, the board does not suggest even the appearance of collusion between the petitioner and his attorney as was suggested in the case upon which the board relies. Steadwell v. Unemployment Compensation Board of Review, 76 Pa. Commonwealth Ct. 439, 463 A.2d 1298 (1983).