Magio
v. UCBR – Cmwlth. Court - MAY 14, 2015 –
unreported memorandum decision
Held: Last
minute request for continuance denied.
The UC
regs, 34 Pa. Code §101.23(a) allows a continuance “only for proper cause and
upon the terms as the tribunal may consider proper.” A claimant who desires a
continuance due to his inability to attend a hearing has a duty to “immediately
request a continuance in writing before the hearing.” Flores v. UCBR,
686 A.2d 66, 76 (Pa. Cmwlth. 1996) (citation omitted). The UC Regulations
further provides that, “[i]f a party notified of the date, hour and place of a
hearing fails to attend a hearing without proper cause, the hearing may be held
in his absence.” 34 Pa. Code at §101.51.
In Cowfer
v. UCBR, 534 A.2d 560, 562 (Pa. Cmwlth. 1987), we noted that “last-minute
requests for continuances will not be viewed favorably by this Court.”
Moreover, in Skowronek, 921 A.2d at 558, we reasoned that “[i]f counsel
was unavailable due to a previously scheduled appointment, there is no
explanation as to why the request was not made prior to 6:30 p.m. on the last
business day before the hearing.” Even the four notices of hearing sent to
Claimant advised: “If you cannot attend the hearing for any reason, you may
request a continuance (postponement) of the hearing. You should do this as
soon as possible.” (Notices of Hearing, 2/20/2014, at 3, C.R. Item No. 8.)
(emphasis added).
In this
case, not only was the continuance request filed shortly before the scheduled
hearing, the reason given for the request was not because of an emergency or
unexpected event. Instead, Claimant’s counsel stated that he could not attend
because he was traveling abroad. Generally, such travel requires advance
planning and counsel would know that he would be unavailable on the hearing
date and should have requested a continuance much earlier, given that notices
for the hearing were sent well in advance.
Given
that the request for a continuance was received less than an hour before the
scheduled time and was not because of an unexpected event, the Referee did not
abuse his discretion in denying the continuance, and absent an abuse of
discretion, we will not override a referee’s denial of a continuance. Steadwell
v. UCBR, 463 A.2d 1298, 1300 (Pa. Cmwlth. 1983).
____________________
The
opinion, though not reported, may be cited "for its persuasive value, but
not as binding precedent." 210 Pa. Code 69.414.
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