64 PACOMMW 184 - Peda v. Commonwealth

¶1Opinion by

President Judge Crumlish, Jr.,

¶2Peter Peda appeals an Unemployment Compensation Board of Review order which affirmed a referee’s denial of benefits. We vacate and remand.

¶3When Peda’s wife was hospitalized for psychiatric care, he terminated his employment in order to be home in the evenings to care for his sixteen year old daughter. The referee denied him benefits and the Board affirmed finding that the desire to care for his daughter did not constitute a “cause of necessitous and compelling nature.” Section 402(b) of the Unemployment Compensation Law.1

¶4We will not consider this issue because Peda also contends that he was denied a fair hearing because he was not represented by counsel before the referee nor was he advised of his right to secure an attorney.2 We have recently held that in an unemployment compensation case', an unrepresented claimant, has the right to be advised by the referee that he may seek legal counsel, may offer witnesses and cross-examine adverse witnesses. Vitko v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 391, 436 A.2d 1235 (1981).

¶5Vacated and remanded for an evidentiary hearing consistent with this opinion.

¶6Order

¶7The order of the Unemployment Compensation Board of Review, No. B-184255, dated May 20,1980, is *186vacated and remanded for proceedings consistent with this opinion.

¶8This decision was reached prior to the expiration of term of office of Judge Palladino.

¶9 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802 (b).

¶10 Normally, we would consider an argument first raised at oral argument to be untimely raised, however, Pa. R.A.P. 1551(a)(3) allows questions to be raised by the petitioner before this Court if by due diligence they could not have been raised below.