Monday, October 25, 2010

UC - education employees - reasonable assurance - subpoena -

Juniata Childcare and Devel. Services, Inc. v. UCBR - Cmwlth. Court - July 29, 2010


http://www.pacourts.us/OpPosting/Cwealth/out/2358CD09_10-22-10.pdf


The court remanded this case for an additional hearing, at which the employer would be allowed to present evidence through witnesses whom the referee improperly refused to subpoena.


The employer alleged that the claimant were educational (Head Start) employees who had reasonable assurance of continuing work in the next educational year and were thus not eligible under 43 P.S. ยง802.1. Before the hearings began, Employer requested that the Referee issue a subpoena for certain documents which it claimed would establish that Claimants had a reasonable assurance of continuing their employment once the summer ended and school was back in session. The referee refused to issue the subpoena, claiming that the ER would not be able to lay a proper foundation.

A referee has discretion to refuse to issue a subpoena. Alston v. UCBR, 967 A.2d 432 (Pa. Cmwlth. 2009). However, this discretion is not absolute. A referee may not refuse to issue a subpoena, then rule against the party that requested the subpoena because it did not offer into evidence the very information that the party could only have obtained through the subpoena that the referee declined to issue. Hamilton v. UCBR, 532 A.2d 535, 537(Pa. Cmwlth. 1987).

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