PROCEDURE
§ 101.51. Absence of party.
If a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records. The tribunal may take such other action as may be deemed appropriate.
Source The provisions of this § 101.51 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Issuance of Subpoenas and Nonappearance
Claimants failed to make the requisite offer of proof establishing entitlement to the initial issuance of subpoenas. Moreover, assuming arguendo that the referee erred in denying these subpoenas originally, any error was cured by subsequent issuance of the subpoenas. Because none of the claimants appeared at the second hearing, to avail themselves of this second opportunity to be heard, they cannot legitimately claim to have been prejudiced by a lack of due process. Finally, a proper cause inquiry for nonappearance does not impermissibly reallocate the burden of proof in a willful misconduct setting. Flores v. Unemployment Compensation Board of Review, 686 A.2d 66 (Pa. Cmwlth. 1996).
Pertinent Available Records
As both the unemployment compensation claimant and employer failed to appear for a scheduled hearing before the referee, the referee and the Unemployment Compensation Board of Review could either decide the case based on the ‘‘pertinent available records’’ or reschedule the hearing. Clairton Municipal Authority v. Unemployment Compensation Board of Review, 639 A.2d 921 (Pa. Cmwlth. 1994).
Proper Cause
Claimant’s negligent misreading of hearing date on notice of hearing was not ‘‘proper cause’’ under this section which would invalidate Board decision based on evidence presented at a hearing held, in claimant’s absence. Savage v. Unemployment Compensation Board of Review, 491 A.2d 947 (Pa. Cmwlth. 1985).
The dismissal, based upon the claimant’s failure to appear, of an appeal from a finding of noneligibility for benefits based upon the self-employment of the claimant, was reversed when the Board failed to determine if there was proper cause for claimant’s absence as required by this section. Eckert v. Unemployment Compensation Board of Review, 483 A.2d 1059 (Pa. Cmwlth. 1984).
Referee’s Decision
Where the claimant fails to attend the referee’s hearing without ‘‘proper cause’’, the referee must issue a decision on the merits with findings of fact based upon the evidence of record, including any testimony that the employer may wish to offer in support of its burden of proof. Ortiz v. Unemployment Compensation Board of Review, 481 A.2d 1383 (Pa. Cmwlth. 1984).
Section 502 of the Unemployment Compensation Law (43 P. S. § 822), when read together with this section, reveals the legislation’s intention that referees decide unemployment cases on their merits, even in the absence of a party or indeed both parties. Gadsden v. Unemployment Compensation Board of Review, 479 A.2d 74 (Pa. Cmwlth. 1984).
Where the employer was notified of the date, hour and place of the hearing, and the referee waited for the employer to appear, it was not erroneous for the referee to conduct the hearing in the employer’s absence. Torsky v. Unemployment Compensation Board of Review, 474 A.2d 1207 (Pa. Cmwlth. 1984).
In upholding the discharge of an employe for willful misconduct, the Court noted that 34 Pa. Code § 101.51 allows the referee to hold a hearing without one party or all parties if they have all been duly notified. Lee v. Unemployment Compensation Board of Review, 458 A.2d 629 (Pa. Cmwlth. 1983).
Waiver of Opportunities
Because claimant has neglected to establish proper cause for nonappearance, he waived his opportunity to request a continuance or telephonic conference, waiting until the day of trial to assert unavailability, and failed to address the exact nature and probative worth of his testimony from another proceeding, neither the referee nor the Board erred in refusing to admit claimant’s PLRB testimony. Flores v. Unemployment Compensation Board of Review, 686 A.2d 66 (Pa. Cmwlth. 1996).
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