Wednesday, February 17, 2010

admin. law - appeal - preservation of issues - claim that hearing was unfair

Atwell v. UCBR - Cmwlth. Court - February 17, 2009 - unpublished memorandum opinion

The fairness of a hearing is a matter of a constitutional dimension that can be raised for the first time in an appeal to this Court. See Felici v. UCBR, 444 A.2d 843 (Pa. Cmwlth. 1982) (holding that claimant’s challenge to the fairness of his hearing may be raised by the claimant for the first time in his brief to this Court).

Claimant was thus allowed to present his argument that the Referee did not ask him if he waived his right to counsel at the hearing and did not provide him with assistance in cross-examining witnesses, 34 Pa. Code sec. 101.21(a), even though he did not raise the issue before the UCBR.