Summary
In Paoloco v. Unemployment Compensation Board of Review, 10 Pa. Commw. 214, 309 A.2d 594 (1973) this court held that, while it might be advisable for referees to advise uncounseled claimants of their rights to counsel, to cross-examine and to offer witnesses, a fair hearing was not denied for his failure to do so.
Summary of this case from Katz v. Commonwealth, Unemployment Compensation Board of ReviewOpinion
Argued September 11, 1973
September 27, 1973.
Unemployment compensation — Voluntary retirement — Cause of necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897 — Scope of appellate review — Substantial evidence — Error of law — Fraud — Fair hearing — Right to counsel — Right to call witnesses — Right to cross-examine — Advising of rights — Language difficulty — Comprehension of proceedings.
1. Voluntary retirement in the face of pressure to retire but absent a compulsory retirement plan is a voluntary leaving of work without a cause of a necessitous and compelling nature rendering the retiree ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P. L. (1937) 2897. [215-16]
2. In an unemployment compensation case, the findings and decision of the referee or the Unemployment Compensation Board of Review will be affirmed on appeal where supported by substantial evidence, in the absence of an error of law or a showing of fraud. [216]
3. An unemployment compensation claimant has the right to a fair hearing, including the right to counsel, the right to call witnesses and the right to cross-examine, but ordinarily the referee hearing the case is not required to advise the claimant of these rights. [216-17]
4. A fair hearing is not denied an unemployment compensation claimant merely because he has difficulty with the English language when it appears that the claimant clearly comprehended the rules applied and the questions asked and his rights were not prejudiced in a substantial way. [217]
Argued September 11, 1973, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 791 C.D. 1972, from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Angelina Paoloco, No. B-113249.
Application to Bureau of Employment Security for unemployment compensation benefits. Application denied. Claimant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Claimant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Morton Abrams, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
Until June 23, 1971, Angelina Paoloco (claimant), then aged 66, was employed by Baker's Clothes as an armhole baster. She left her employment on that date, and she has since been receiving both social security benefits and a union pension. She has also applied for unemployment compensation benefits, but these were denied by the Bureau of Employment Security (Bureau) on the ground that, inasmuch as Baker's Clothes did not have a compulsory retirement policy, her leaving employment was voluntary and did not entitle her to such benefits. The referee and the Unemployment Compensation Board of Review (Board) each in turn affirmed the Bureau's decision.
It is well established that a voluntary retirement constitutes a voluntary leaving of work without cause of a necessitous and compelling nature, and that it thus renders the individual concerned ineligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P. S. § 802(b)(1). Walker Unemployment Compensation Case, 202 Pa. Super. 231, 195 A.2d 858 (1963); Greenaway Unemployment Compensation Case, 201 Pa. Super. 80, 191 A.2d 710 (1963); Mayo Unemployment Compensation Case, 196 Pa. Super. 593, 176 A.2d 159 (1961). "[W]hen an employee requests retirement under a noncompulsory plan when work is available, he is ineligible for benefits." Homer Unemployment Compensation Case, 198 Pa. Super. 189, 191, 181 A.2d 865, 866 (1962).
It is clear, of course, that we must affirm findings and decisions of the referee or the Board, as the case may be, when they are supported by substantial evidence (and absent an error of law or a showing of fraud). General Motors Corporation Unemployment Compensation Cases, 9 Pa. Commw. 221, 306 A.2d 399 (1973); United States Steel Corporation v. Unemployment Compensation Board of Review, 9 Pa. Commw. 206, 303 A.2d 852 (1973). And it was found here by the referee, and affirmed by the Board, that the claimant did retire voluntarily, even though continuing work would have been available for her had she chosen to remain. A review of the record clearly discloses, too, that there was sufficient testimony, especially by representatives of Baker's Clothes, on which to base the finding made. The claimant's argument is that she was coerced into retiring by her supervisor out of "spite." If there was any pressure on her to retire, however, she was still under no obligation to comply, and, if she had resisted the pressure, she would presumably still be employed. See Homer, supra; Kaman Unemployment Compensation Case, 192 Pa. Super. 509, 161 A.2d 663 (1960). It is worthy of note, moreover, that she did not actually leave employment until her earlier application for social security benefits had been allowed and the payment of such benefits had actually begun.
The claimant has complained of the procedure at the hearing before the referee, where she was unrepresented by counsel. She argues that the referee should have advised her of her right to an attorney, of her right to offer witnesses in her own behalf and of her right to cross-examine other witnesses. Although it might have been preferable if the referee had so advised an unrepresented claimant, we cannot say that he is required to give such advice. As our Superior Court has said: "Ordinarily it is not incumbent upon the referee to inquire why the parties are not represented by counsel, nor is it his duty to advise them that they are entitled to counsel. The parties testified at length and were not hampered in any way from testifying freely and as they desired. No further hearings were requested by appellant to present additional or new testimony. After reviewing the record, we feel that a fair hearing was conducted by the referee." Hackey Unemployment Compensation Case, 194 Pa. Super. 79, 81-82, 166 A.2d 303, 305 (1960). It is true, of course, that the referee may not deny the above stated rights to claimant, if claimed, but there is no evidence of such claim or denial thereof in the record here. Cf. Klink v. Unemployment Compensation Board of Review, 5 Pa. Commw. 62, 289 A.2d 494 (1972).
Lastly, it is objected in behalf of the claimant that she does not have an adequate understanding of the English language and so could not understand the proceedings before the referee or the Board. While a review of the record does disclose that her answers to questions were not always coherent, they were still comprehensible and they generally appeared responsive to the questions asked. We believe that they indicated a sufficient familiarity with the language on the claimant's part so that her rights were in no substantial way prejudiced. She seems to have understood both what the rules were and what she was being asked.
For the above reasons, therefore, we issue the following
ORDER
NOW, September 27, 1973, the Order of the Unemployment Compensation Board of Review as to the claim of Angelina Paoloco is hereby affirmed.