Opinion
June 14, 1961.
September 12, 1961.
Unemployment Compensation — Benefits for second benefit year — Failure to maintain active registration for work — Findings of Board of Review — Swearing in bureau's representative as witness at hearing before referee — Regulations — Presumption — Judicial notice by referee — Due process — Necessity of producing bureau employe as witness — Failure to advise claimant of various legal rights — Absence of prejudice — Unemployment Compensation Law.
1. In an unemployment compensation case, in which it appeared that the Board of Review refused to allow benefits for a second benefit year on the ground that claimant had failed to comply with the active registration requirement set forth in § 4(w)(2) of the Unemployment Compensation Law; that claimant contended that the findings of the board were not supported by substantial competent evidence, in that the representative of the bureau at the hearing before the referee was not sworn as a witness; that a regulation of the board expressly provided that all witnesses should be sworn or affirmed before testifying; and that the only function of the bureau's representative was to present the various forms and records upon which the bureau had based its determination in claimant's case; it was Held that (a), while it did not affirmatively appear that the bureau's representative was sworn, that circumstance might be presumed in the absence of proof to the contrary; and (b) the forms and records in question were official documents of which the referee properly could take judicial notice.
2. Claimant's further contention that the procedures followed by the Board of Review were a violation of due process of law was Held to be without merit, in that (a) it was unnecessary to produce as a witness the bureau employe who interviewed claimant in view of claimant's admission that he had signed the statement acknowledging receipt of the form explaining the requirement for maintenance of an active registration for work, and (b) in that claimant failed to demonstrate that he was in any way prejudiced by the alleged failure to advise him, inter alia, of his right to be represented by counsel, of the limitation on counsel fee set forth in a regulation of the board, of his right to cross-examine, and of his right to refrain from answering questions.
Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ. (RHODES, P.J., absent).
Appeal, No. 135, Oct. T., 1961, by claimant, from decision of Unemployment Compensation Board of Review, No. B-61034, in re claim of Harry Shumelman. Decision affirmed.
Neil Leibman, for appellant.
Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.
Argued June 14, 1961.
Harry Shumelman was last employed as a cloth cutter by Linsk Company, Philadelphia, Pennsylvania. His final day of work was July 31, 1959, on which date he had a valid separation. Shumelman thereafter filed an application for unemployment compensation, and received benefits for thirty weeks. On August 1, 1960, having had no intervening employment, he filed an application for benefits for a second benefit year, which was within ninety days after the termination of the preceding benefit year. His application was disallowed by the Board of Review on the ground that he had failed to comply with the active registration requirement set forth in section 4(w)(2) of the Unemployment Compensation Law. Act of December 5, 1936, P.L. (1937) 2897, 43 P.S. 751 et seq. This appeal followed.
The record discloses that, on March 10, 1960, claimant exhausted his entitlement for the first benefit year by filing a claim for his final compensable week. On that date, according to his own signed statement, claimant was given a form UC-483 explaining the requirement that he must maintain an active registration for work by reporting to the local office at intervals of not more than sixty days. See Lodge Unemployment Compensation Case, 194 Pa. Super. 626, 169 A.2d 305. Claimant did not report thereafter until May 20, 1960, which was beyond the sixty-day period. It is readily apparent that the Board of Review acted properly in refusing to allow benefits under the rule announced in Marinoff Unemployment Compensation Case, 194 Pa. Super. 332, 168 A.2d 606, and followed consistently since.
Crompton Unemployment Compensation Case, 194 Pa. Super. 336, 168 A.2d 608; Lodge Unemployment Compensation Case, supra, 194 Pa. Super. 626, 169 A.2d 305; Donaldson Unemployment Compensation Case, 195 Pa. Super. 243, 171 A.2d 836; Rosemas Unemployment Compensation Case, 195 Pa. Super. 245, 171 A.2d 534; Ladika Unemployment Compensation Case, 195 Pa. Super. 239, 171 A.2d 624; Smith Unemployment Compensation Case, 195 Pa. Super. 248, 171 A.2d 535; Caruso Unemployment Compensation Case, 195 Pa. Super. 250, 171 A.2d 533; Kuhnert Unemployment Compensation Case, 195 Pa. Super. 253, 171 A.2d 537.
Counsel for appellant has advanced two contentions on this appeal. The first is that the findings of the Board of Review were not supported by substantial competent evidence. The gravamen of this complaint is that Miss Theresa LaVecchio, the representative of the Bureau at the hearing before the Referee, was not sworn as a witness. An examination of the record does not support claimant's contention. Regulation No. 302 of the Board of Review expressly provides that all witnesses shall be sworn or affirmed before testifying. While it does not affirmatively appear that Miss LaVecchio was sworn, that circumstance may be presumed in the absence of proof to the contrary. See Neumeyer Unemployment Compensation Case, 187 Pa. Super. 321, 144 A.2d 606. Furthermore, Miss LaVecchio's only function was to present the various forms and records upon which the Bureau had based its determination in appellant's case. These forms and records were official documents of which the Referee properly could take judicial notice. Appellant does not assert that they contained error, and no objection was made to the manner of their presentation. See Sledzianowski Unemployment Compensation Case, 168 Pa. Super. 37, 76 A.2d 666.
Appellant's second contention is that the procedures followed by the Board of Review "were a violation of due process of law". It is argued that the Bureau employe who interviewed appellant on March 10, 1960, was not produced as a witness. This was clearly unnecessary in view of appellant's admission that he had signed the statement acknowledging receipt of form UC-483. In this connection his testimony was as follows: "Q. On March 10, when you visited the local office to sign for your 30th check they showed you this form? A. Yes, and I signed that". It is also argued that the record does not show that appellant was advised, inter alia, of his right to be represented by counsel, of the limitation on counsel fee set forth in Regulation No. 311 of the Board of Review, of his right to cross-examine, and of his right to refrain from answering questions. Passing the fact that these complaints are here raised for the first time, appellant has failed to demonstrate that he was in any way prejudiced. The record discloses no indication whatever of any unfairness in the conduct of the instant proceeding.
Decision affirmed.