HEARINGS
§ 101.21. Conduct of hearings.
(a) In a 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.
(b) The tribunal shall determine the order in which the evidence shall be presented in hearings. Within the discretion of the tribunal, the parties shall be permitted to present evidence and testimony which they believe is necessary to establish their rights.
(c) Hearings under this part shall be open to the public, subject to the availability of suitable and reasonable facilities. However, the tribunal conducting a hearing may close the hearing as to other than interested parties to the extent necessary to protect the interests and rights of the claimant or employer to a fair hearing.
Source The provisions of this § 101.21 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Due Process
The action of a referee in taking evidence from an employer and then concluding the hearing while the claimant and claimant’s counsel wait in a hallway just outside does not meet due process standards. Collins v. Unemployment Compensation Board of Review, 415 A.2d 145 (Pa. Cmwlth. 1980).
Neither considerations of due process nor this section require the referee to assist claimants in a manner incompatible with the impartial discharge of the referee’s duties; failure of the referee to advise a party on right to counsel, nature of proceeding, burden of proof, and applicable law does not constitute a violation of due process or the provision of this section. Horvath v. Unemployment Compensation Board of Review, 403 A.2d 1073 (Pa. Cmwlth. 1979).
While a referee may not improperly refuse to accept relevant, competent and material evidence, no deprivation of claimant’s due process rights is shown if counsel for claimant is permitted to question opposition witnesses, does not object to the conclusion of the hearing, does not request that counsel’s witnesses be permitted to testify, does not offer to produce additional probative evidence, and does not request a further hearing. Healey v. Unemployment Compensation Board of Review, 387 A.2d 1025 (Pa. Cmwlth. 1978).
Evidence
The referee’s failure to advise a claimant as to the hearsay nature of certain evidence introduced into the record without objection does not constitute a breach of the referee’s duty under this section. A referee is not required to advise a claimant on specific evidentiary questions or points of law. Rohrbach v. Unemployment Compensation Board of Review, 450 A.2d 323 (Pa. Cmwlth. 1982).
The admission of hearsay evidence by a referee is prejudicial to a claimant under this section and is cause for remand. Wise v. Unemployment Compensation Board of Review, 450 A.2d 314 (Pa. Cmwlth. 1982).
When the claimant testified that the evidence was submitted to the Board by letter and that claimant had no additional testimony to present and the letter was not in the record nor was it considered by the referee acting as hearing officer, or by the Board, the claimant did not receive a full and fair determination of his appeal. Unemployment Compensation Board of Review v. Hoffer, 360 A.2d 796 (Pa. Cmwlth. 1976).
In a proceeding before a referee for the Unemployment Compensation Board of Review, the spirit of this section is violated where there is a communications gap between the claimant and the referee, concerning consideration of evidence; such violation deprives the claimant of a full and fair determination of an appeal. Unemployment Compensation Board of Review v. Hoffer, 360 A.2d 796 (Pa. Cmwlth. 1976).
General Comments
Subsection (a) does not require the referee to advise a party on evidentiary questions or on specific points of law. Simpson v. Unemployment Compensation Board of Review, 395 A.2d 309 (Pa. Cmwlth. 1978).
Record
Where an unrepresented claimant submitted a psychological report to the service center, the referee did not provide every assistance in an impartial manner by offering several service center documents for admission into the record, but not the claimant’s psychological report. Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829 (Pa. Cmwlth. 2003).
Record of Proceedings
Not only is the referee required, at the minimum, to advise a claimant unrepresented by counsel of the right to have an attorney, to offer witnesses and to cross-examine adverse witnesses, but said advice should appear in the record to enable a full review of an appeal grounded on an alleged failure by the referee to afford the claimant due process. Glammer v. Unemployment Compensation Board of Review, 449 A.2d 78 (Pa. Cmwlth. 1982).
Representation
Where the petitioner refused to waive the 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 counsel’s failure to appear, the petitioner was prejudiced by the referee’s decision to proceed and was entitled to a remand. Williams v. Unemployment Compensation Board of Review, 484 A.2d 831 (Pa. Cmwlth. 1984).
Testimony
Witnesses
Where claimant’s attorney elected not to have witnesses testify after the referee had questioned the relevance of the testimony, no refusal to permit testimony in contravention of claimant’s due process rights has been established. Wilkins v. Unemployment Compensation Board of Review, 502 A.2d 283 (Pa. Cmwlth. 1985).
A referee’s failure to notify a claimant that the Board could take steps to have a subpoena enforced when claimant’s witness failed to appear was harmless error where the witness’ testimony, had it been given and had it confirmed all that the claimant had alleged, would only have been cumulative. Ehmann v. Unemployment Compensation Board of Review, 483 A.2d 587 (Pa. Cmwlth. 1984).
Unrepresented Claimants
‘‘Another component of a referee’s reasonable compliance with the regulatory obligation to assist unrepresented parties is guiding the parties to bring out facts of which the referee knows or should know.’’ Hackler v. UCBR, 24 A.3d 1112, 1116 (Pa. Cmwlth. 2011).
The regulation obligates a referee to inform an unrepresented claimant of his rights, to aid claimants in the examination and cross-examination of witnesses, and to give claimants assistance compatible with the impartial discharge of its official duties. The referee’s conduct falls short of this standard when referee chastised the claimant for not reading (and remembering) the terms of Non Competition Agreement, quarreled with claimant’s description of the Agreement, and sua sponte, objected to claimant’s attempted testimony about employer’s treatment of other employees allowed to work in spite of having agreed to a non-compete agreement on grounds of hearsay. Zimmerman v. Unemployment Compensation Board of Review, 836 A.2d 1074 (Pa. Cmwlth. 2003).
The claimant was provided with written notice of the hearing, which included notice of his rights. The claimant was also advised of his rights by the referee, and was afforded the opportunity to be heard throughout the trial. The referee, however, is not required to assume the role of the claimant’s advocate. Therefore, the record reflects that the hearing was fair and impartial, and the claimant was afforded due process. McFadden v. Unemployment Compensation Board of Review, 806 A.2d 955 (Pa. Cmwlth. 2002).
The referee has a responsibility to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed. The referee failed to inform claimant that claimant could have requested a continuance of the hearing in order to secure and present testimony from employer. This evidence would have aided in the development of necessary factual determinations. Coates v. Unemployment Compensation Board of Review, 676 A.2d 742 (Pa. Cmwlth. 1996).
By virtue of this regulation, a claimant appearing at the referee’s hearing without counsel is entitled to assistance from the referee in the development of the claimant’s case and advice as to claimant’s basic rights. Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810 (1996).
Evidence that the referee assisted an uncounseled claimant as required under this section is sufficient to prove that claimant’s right to present evidence and cross-examine adverse witnesses was in no way compromised. Reed v. Unemployment Compensation Board of Review, 522 A.2d 121 (Pa. Cmwlth. 1987).
To comply with subsection (a), an Unemployment Compensation Board of Review referee must advise an uncounseled claimant of the claimant’s due process rights to be represented by counsel, to cross examine adverse witnesses, and to offer witnesses in the claimant’s own behalf. The referee must render every assistance compatible with impartial discharge of the referee’s duties; however, the referee is not required to become, and should not assume, the role of claimant’s advocate. Brennan v. Unemployment Compensation Board of Review, 487 A.2d 73 (Pa. Cmwlth. 1985).
Where the referee failed to advise a pro se claimant of rights and to ask important questions concerning the reasons for claimant’s termination of employment, the referee violated subsection (a) (responsibilities of the tribunal to a pro se party) and the case was remanded. Tate v. Unemployment Compensation Board of Review, 477 A.2d 54 (Pa. Cmwlth. 1984).
A claimant who elects to proceed without legal representation, and who receives all the assistance from the tribunal due under subsection (a), cannot be heard to complain on appeal that case might have been presented more effectively or with greater credibility with the assistance of counsel. Rodgers v. Unemployment Compensation Board of Review, 476 A.2d 1014 (Pa. Cmwlth. 1984).
Where, in violation of subsection (a), a referee has failed to advise an uncounseled claimant of the right to present and subpoena witnesses, the 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 claimant’s rights. Finley v. Unemployment Compensation Board of Review, 474 A.2d 431 (Pa. Cmwlth. 1984).
While a claimant appearing at the referee’s hearing without counsel is entitled under subsection (a) to assistance from the referee in the development of a case and advise as to claimant’s basic rights, claimant need not be shown any greater deference than would be afforded a claimant with an attorney. Groch v. Unemployment Compensation Board of Review, 472 A.2d 286 (Pa. Cmwlth. 1984).
Where a referee asked an unrepresented claimant if claimant wished to ask questions of the employer at the conclusion of employer’s testimony and also explained claimant’s right to subpoena the testimony of the writers of certain letters which had been excluded as hearsay, the referee had complied with subsection (a). Ellis v. Unemployment Compensation Board of Review, 471 A.2d 1281 (Pa. Cmwlth. 1984).
No remand was granted for an alleged violation of subsection (a) where the record indicated that the referee advised the claimant of the right to have an attorney represent claimant at the hearing, to present witnesses in his behalf and to cross-examine those witnesses presented against claimant. The referee was, also, not remiss in taking a more active role in the development of the claimant’s case. Barksdale v. Unemployment Compensation Board of Review, 469 A.2d 716 (Pa. Cmwlth. 1984).
A referee discharged the obligations under subsection (a) by informing the claimant of the right to counsel, the right to offer witnesses and to cross-examine adverse witnesses. The referee does not fail in the discharge of those obligations because of a failure to ask if claimant understands these rights. Oliver v. Unemployment Compensation Board of Review, 450 A.2d 287 (Pa. Cmwlth. 1982).
The referee did not fail to perform the duties under subsection (a) merely because the referee neglected to define ‘‘able and available’’ and ‘‘work’’ prior to asking claimant whether she was able and available to accept work. Ellison v. Unemployment Compensation Board of Review, 431 A.2d 1094 (Pa. Cmwlth. 1981).
Fairness and the provisions of subsection (a) require an Unemployment Compensation Appeals Board referee to advise an uncounseled claimant of the right to be represented by counsel, offer witnesses and cross examine adverse witnesses in an unemployment compensation evidentiary hearing. Katz v. Unemployment Compensation Board of Review, 430 A.2d 354 (Pa. Cmwlth. 1981).
Conduct of a hearing was insufficient in light of this section when the referee failed to advise an uncounseled claimant of rights, gave claimant no meaningful opportunity to challenge hearsay documents upon which the employer’s case was based or to cross-examine declarants, made no effort to solicit the claimant’s views in an orderly manner designed to test the credibility of the employer’s evidence, attempted to dismiss the claimant after the conclusion of the employer’s submissions without questions or further proceedings, responded to the claimant’s requests to speak in a manner designed to abbreviate the claimant’s reply, and made no effort to clarify the claimant’s challenge to the employer’s evidence, but rather cross-examined claimant apparently for purposes of reinforcing the employer’s case. Unemployment Compensation Board of Review v. Ceja, 427 A.2d 631 (Pa. 1981).
The referee did not fail to assist a claimant under subsection (a) in developing evidence since, although the referee did interrupt the claimant at one point to ask a question, the claimant was later asked twice by the referee whether claimant had any further testimony and the claimant was allowed to respond. Russell v. Unemployment Compensation Board of Review, 402 A.2d 1149 (Pa. Cmwlth. 1979).
—Remand Appropriate
A referee’s failure to advise an unrepresented claimant of right to secure counsel, to cross-examine adverse witnesses, and to offer witnesses, as required by subsection (a) requires a remand for a new hearing. Chapman v. Unemployment Compensation Board of Review, 465 A.2d 111 (Pa. Cmwlth. 1983).
Claimant was prejudiced by the referee’s failure to advise the claimant, under subsection (a), of claimant’s rights to be represented by an attorney, present witnesses, and cross-examine adverse witnesses. Allrutz v. Unemployment Compensation Board of Review, 463 A.2d 100 (Pa. Cmwlth. 1983).
The referee is required by subsection (a) to advise the claimant of her right to have counsel and to cross-examine adverse witnesses. Failure to do so was prejudicial error where the claimant, lacking counsel at the hearing, could have been disabled from establishing the truth of an alleged misunderstanding with the employer. Mayberry v. Unemployment Compensation Board of Review, 457 A.2d 182 (Pa. Cmwlth. 1983).
The improper exclusion of medical certification from evidence implies that the claimant was not given the assistance or advice required by subsection (a), and, where the Board concedes that the claimant did not receive a fair and impartial hearing, there is cause for remand. Demmy v. Unemployment Compensation Board of Review, 450 A.2d 327 (Pa. Cmwlth. 1982).
A referee’s failure to instruct a claimant that the claimant had the right to cross-examine the employer’s witnesses, coupled with a failure to afford the claimant the opportunity to do so, was prejudicial and is cause for remand. Linke v. Unemployment Compensation Board of Review, 450 A.2d 312 (Pa. Cmwlth. 1982).
If an unemployment compensation hearing referee fails to advise a claimant unrepresented by counsel of the claimant’s rights, to aid claimant in examining or cross-examining witnesses, and to give every assistance compatible with the impartial discharge of the referee’s duties, the case will be remanded to the Board for further action. Stine v. Unemployment Compensation Board of Review, 448 A.2d 117 (Pa. Cmwlth. 1982).
Failure of the referee to inform the petitioner of the right to have counsel, to present witnesses in his own behalf, and to cross-examine adverse witnesses was cause for remand in the absence of evidence from the record that petitioner waived the right to be advised or that petitioner’s rights were not materially affected. Bender v. Unemployment Compensation Board of Review, 446 A.2d 1004 (Pa. Cmwlth. 1982).
Since neither claimant was represented by counsel at separate hearings before the referee, and at each hearing the referee failed to advise the claimants of their procedural rights, the cases must be remanded. Lauer v. Unemployment Compensation Board of Review, 445 A.2d 1353 (Pa. Cmwlth. 1982).
Since the claimant was not represented by counsel at the hearing before the referee, and the referee failed to advise claimant, as an uncounseled claimant, of claimant’s procedural rights, the case must be remanded. Hughes v. Unemployment Compensation Board of Review, 445 A.2d 1352 (Pa. Cmwlth. 1982).
When the referee at an unemployment compensation hearing, in addition to not informing a pro se claimant of the right to counsel, to cross-examine, and to offer witnesses on claimant’s behalf, did not ask claimant questions sufficient to enable claimant to emphasize the factual aspects of claimant’s contentions which might have aided claimant in establishing a necessitous and compelling cause for voluntary termination of her employment which would, if proven, allow claimant to receive benefits, the interests of fairness as contemplated by subsection (a) require a reversal of the referee’s decision, and remand for a new hearing. Bennett v. Unemployment Compensation Board of Review, 445 A.2d 258 (Pa. Cmwlth. 1982).
The failure of the referee to advise an uncounselled claimant of the right to have an attorney, to offer witnesses and to cross examine adverse witnesses in accordance with the provisions of subsection (a) required the court to remand to the Board for a new evidentiary hearing at which the claimant, if uncounselled, shall be advised of such rights. Hoffman v. Unemployment Compensation Board of Review, 430 A.2d 1036 (Pa. Cmwlth. 1981).
The Board did not err in denying a remand to an unrepresented claimant to present additional evidence. The claimant’s failure to present the evidence at the initial hearing, because she was unrepresented and not advised that she could present such evidence, did not constitute good cause for a remand. The Referee and the Board’s appraisal of the claimant’s rights to counsel, present evidence and testimony, and to present and cross-examine witnesses was sufficient to satisfy due process. Beddis v. Unemployment Compensation Board of Review, 6 A.3d 1053 (Pa. Cmwlth. 2010).
Cross References This section cited in 34 Pa. Code § 101.86 (relating to appeal hearings).
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