Summary
In Linke v. Unemployment Compensation Board of Review, 69 Pa. Commw. 117, 450 A.2d 312 (1982) (No. 1789 C.D. 1981, filed September 17, 1982), we held that whether or not prejudice exists can be decided only on a case by case basis.
Summary of this case from Schuster v. Commonwealth, Unemployment Compensation Board of ReviewOpinion
September 17, 1982.
Unemployment compensation — Failure to advise of rights — Prejudice — Right to cross-examination.
1. An unemployment compensation case must be remanded when the referee failed to advise an unrepresented claimant of his rights unless such failure was neither prejudicial nor materially affected those rights, and, when such claimant seeking to sustain his burden of proving that his voluntary termination was for a compelling and necessitous cause was not advised of his right to cross-examine witnesses and was not given the opportunity to do so, prejudice is apparent and the case must be remanded. [119-20]
Submitted on briefs to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 1789 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Karl Linke, No. B-196311.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed. Benefits denied by referee. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
William W. Shimer, Jr., for petitioner.
Richard C. Lengler, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Kathryn H. Levering, Drinker, Biddle Reath, for Amicus Curiae, Hospital of the University of Pennsylvania.
In the instant case, the Claimant, seeks a remand because the referee failed to comply with Part VI of 34 Pa. Code § 101.21(a) which requires the referee to give an unrepresented claimant certain instructions regarding his rights. In Katz v. Unemployment Compensation Board of Review, 59 Pa. Commw. 427, 430 A.2d 354 (1981), we held that such an omission on the referee's part required a remand. Our review of the record here indicates that the referee did not give the Claimant the required instructions.
Karl R. Linke.
The Commonwealth and Claimant's employer by an amicus brief, argue to us that the referee's omission was not prejudicial to the Claimant and, therefore, our recent cases of Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commw. 275, 431 A.2d 378 (1981) and Snow v. Unemployment Compensation Board of Review, 61 Pa. Commw. 396, 433 A.2d 922 (1981) are controlling. In those cases, this Court held that where the failure of the referee to give appropriate instructions was neither prejudicial to the Claimant nor materially affected his rights, the error was harmless.
Hospital of the University of Pennsylvania.
The author of this opinion dissented in Robinson.
In the case now before us, Claimant terminated his employment but testified that he was "forced" to do so by virtue of the circumstances existing at the time of termination. Our case law is to the effect that where the claimant has quit voluntarily, it is his burden to show cause of a necessitous or compelling reason for doing so. Aluminum Company of America v. Unemployment Compensation Board of Review, 15 Pa. Commw. 78, 324 A.2d 854 (1974). Claimant was the sole witness in support of his case. The employer had two witnesses and a Mr. Paul from R. E. Harrington, Inc., designated on the employer's appeal from the grant of benefits by the Office of Employment Security as "agents for employer." At the conclusion of Claimant's testimony, Mr. Paul was asked by the referee if he had any questions of the Claimant. Although Mr. Paul did not ask any questions, the Claimant was never asked by the referee if he had any questions of the employer's witnesses after they had testified. In fact, at one point when the Claimant attempted to contradict a statement made by one of the employer's witnesses, he was admonished by the referee not to do so.
There is no indication that Mr. Paul was a member of the bar.
Whether or not prejudice exists can only be decided on a case by case basis. In this case, we are of the opinion that the referee's failure to instruct the Claimant that he had the right to cross-examine the employer's witnesses coupled with his failure to give Claimant the opportunity to do so, was prejudicial.
Being satisfied under Katz, Robinson and Snow, that the Claimant is entitled to a remand, it will be so ordered.
ORDER
The order of the Unemployment Compensation Board of Review in Decision No. B-196311 is reversed and the case is remanded to the Board for further proceedings not inconsistent with this opinion.