Opinion
Argued April 2, 1979
June 5, 1979.
Unemployment compensation — Wages — Independent contractor — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Continuance — Abuse of discretion.
1. An independent contractor not receiving wages within the meaning of provisions of the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, is ineligible for benefits under that statute. [217]
2. The granting or refusal of a continuance is a matter of discretion, and the denial of a continuance in an unemployment compensation case which had been rescheduled at the request of the party seeking the continuance who had failed to appear at the first hearing is not an abuse of discretion. [218]
Argued April 2, 1979, before Judges WILKINSON, JR., BLATT and DiSALLE, sitting as a panel of three.
Appeal, No. 328 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of William Conlew, No. B-152388.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Arthur L. Gutkin, for petitioner.
Elsa Newman, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
Two issues are raised in this appeal from the Unemployment Compensation Board of Review (Board): (1) whether or not the Board correctly concluded that William Conlew (claimant) was not paid wages within the meaning of Section 401(a) of the Unemployment Compensation Law, and hence was not entitled to unemployment compensation, and (2) whether or not the referee erred in refusing to grant a continuance when the claimant indicated that he could not attend the hearing.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 801(a).
Our examination of the record convinces us that there was substantial evidence to support the Board's findings, and that they in turn support the Board's conclusion that the petitioner was an independent contractor and was not paid wages within the meaning of Section 401(a). As to the continuance, the record shows the claimant did not attend the first hearing on this matter, but later prevailed upon the Board to grant another hearing, which it did. His attorney called the referee at 8:30 A.M. on the day scheduled for the second hearing and requested a continuance because his client had gone to Washington, D.C., for a job interview. The referee denied the continuance and the hearing was held, attended by petitioner's attorney, who called two witnesses. The granting of or the refusal to grant a continuance, of course, is a matter of discretion, Martin v. Unemployment Compensation Board of Review, 38 Pa. Commw. 419, 393 A.2d 514 (1978), and we perceive no abuse of that discretion here.
The order of the Board denying benefits is affirmed.
ORDER
AND NOW, this 5th day of June, 1979, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed.