§ 101.23. Continuance of hearing.
(a) Continuance of a hearing will be granted only for proper cause and upon the terms as the tribunal may consider proper. The inability of a party to attend a hearing because he received less than 7 days notice will be considered proper cause for continuance of a hearing.
(b) Within the discretion of the tribunal, a continuance will not, however, be granted merely because of the absence of a witness, unless it appears that the testimony and evidence he could give would be competent and relevant to the issues involved and that the information is essential to a proper determination of the case.
Source The provisions of this § 101.22 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Abuse of Discretion
Appellate court will not override a referee’s denial of a continuance in unemployment compensation case unless there is an abuse of discretion Skowronek v. Unemployment Compensation Board of Review, 921 A.2d 555, 558-559 (Pa. Cmwlth. 2007).
The failure to grant a continuance based on counsel’s last-minute requests and vague reasons for the need for a continuance did not constitute an abuse of discretion since the claimant is required to make a timely request in a manner consistent with reasonable procedural rules. Liebel v. Unemployment Compensation Board of Review, 570, 558 A.2d 579 (Pa. Cmwlth. 1989).
Petitioners’ request for a continuance due to his incarceration was valid and the referee’s refusal to continue the case and entry of a decision against the claimant violated his due process rights and was an abuse of discretion. Thomas v. Unemployment Compensation Board of Review, 543 A.2d 600 (Pa. Cmwlth. 1988).
Referee did not abuse his discretion in refusing to grant a continuance since claimant failed to make the required showing that the testimony of an absent witness would be competent, relevant and essential to a proper determination of the case. Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450 (Pa. Cmwlth. 1987).
Where the hearing record showed that, at the time of the hearing, claimant’s attorney was enroute to the hearing and would arrive in less than an hour, and that delaying the hearing would not have prejudiced the employer in any manner, the court held that the referee abused her discretion by refusing to grant a continuance. Conrad v. Unemployment Compensation Board of Review, 478 A.2d 930 (Pa. Cmwlth. 1984).
A referee did not abuse his discretion to deny a request for a continuance under this section, where the party requesting the continuance ignored notice to produce first hand evidence of employe’s misconduct at the hearing. Bethlehem Mines v. Unemployment Compensation Board of Review, 459 A.2d 72 (Pa. Cmwlth. 1983).
A referee did not abuse the discretion afforded him under 34 Pa. Code § 101.23(b) by denying a continuance where the requesting claimant’s counsel requested the continuance because a witness could not attend, but counsel failed to make the necessary showing that the witness’ testimony would be competent, relevant, and essential to a proper determination of the case, having failed to even name the missing witness. Steadwell v. Unemployment Compensation Board of Review, 463 A.2d 1298 (Pa. Cmwlth. 1983).
Continuance
A referee’s decision to refuse a request for a continuance under this section is not a proper subject of review without a clear showing of an abuse of discretion. Bethlehem Mines v. Unemployment Compensation Board of Review, 459 A.2d 72 (Pa. Cmwlth. 1983).
Due Process
Where claimant was present at hearing and testified, a co-worker testified on claimant’s behalf and notarized statements from three co-workers were submitted, claimant had opportunity to be heard and referee’s refusal to grant a continuance did not amount to a denial of due process. Viglino v. Unemployment Compensation Board of Review, 525 A.2d 450 (Pa. Cmwlth. 1987).
Essential Information
Where ‘‘voluntary quit’’ claimant had 7 days notice of hearing (including Labor Day Weekend), where husband’s testimony was necessary to determine whether his relocation was due to circumstances beyond his control, and where husband was away on business on hearing date, referee abused his discretion in refusing to grant continuance to permit husband to appear. Flatley v. Unemployment Compensation Board of Review, 500 A.2d 515 (Pa. Cmwlth. 1985).
Sua Sponte
The claimant should have been advised of his right to a continuance or the referee should have declared a continuance sua sponte in order to make arrangements with the phone company to have a four-party conference call to allow claimant’s witnesses to testify. Eddy v. Unemployment Compensation Board of Review, 533 A.2d 191 (Pa. Cmwlth. 1987).
Where the technology did not exist to arrange a four-party conference call to include claimant’s union representative, the referee should have advised the claimant of his right to request a continuance or sua sponte declared one in order to make arrangements for a four-way call. Eddy v. Unemployment Compensation Board of Review, 533 A.2d 191 (Pa. Cmwlth. 1987).
Waiver
Where claimant failed to object to continuance before referee and did not raise matter before Unemployment Compensation Board, issue cannot properly be raised before court. Fleeger v. Unemployment Compensation Board of Review, 528 A.2d 264 (Pa. Cmwlth. 1987).
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