§ 101.107. Issues considered on appeal.
(a) In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may consider an issue in the case though not expressly ruled upon in the decision of the Department or the referee and though not previously raised in the claim or appeal proceedings. However, issues not previously considered or raised will not be considered by the Board, either upon application for, or in the determination of an appeal unless the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
(b) The Board shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case, with the approval of the parties, may be determined though not expressly ruled upon or indicated in the notice of hearing, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record.
Source The provisions of this § 101.107 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Additional Hearings
The Court was not required to remand for an additional hearing regarding violations of 43 P. S. § 804(a) when violations of 43 P. S. § 801(b) had already been proved, determination under section 801(b) involved substantially the same evidence already presented and the same finding was made by the Board under section 804(a). Schaeffer v. Unemployment Compensation Board of Review, 467 A.2d 67 (Pa. Cmwlth. 1983).
Subsection (a) does not preclude the Board or the courts from remanding for consideration of an issue that has not been waived by failure to raise it before reaching Commonwealth Court since the issue was raised before the Board. Gould v. Unemployment Compensation Board of Review, 466 A.2d 750 (Pa. Cmwlth. 1983).
The Board properly vacated its decision that a claimant was ineligible for benefits under the provisions of 43 P. S. § 752, which was not considered by the referee. The provisions of 34 Pa. Code § 101.107 prohibit the Board from considering issues not previously considered, but neither the Board nor the court is precluded from remanding to the referee for disposition of the eligibility issue. Gould v. Unemployment Compensation Board of Review, 430 A.2d 731 (Pa. Cmwlth. 1981).
Basis of Decision
Regardless of what issues are listed in a referee’s notice of hearing, the Board may rule only on the following issues: (1) an issue raised before the Department; (2) an issue on which the Department ruled; (3) an issue raised on appeal from the determination; (4) an issue that the parties agreed to consider at the hearing; (5) an issue that does not prejudice a party; and (6) an issue that the Board explicitly considers in a remand hearing. Turgeon v. UCBR, 64 A.3d 729, 733 (Pa. Cmwlth. 2013).
‘‘The proper relief to be afforded a party when the authorities violate Section 101.87 of the regulations is to remand for consideration of the issue.’’ Henderson v. UCBR, 77 A.3d 699, 723 (Pa. Cmwlth. 2013).
‘‘[R]emand is unnecessary when the critical factual basis on which eligibility turns remains the same and there is no shifting of the burden of proof, because there is no surprise or prejudice to a party that necessitates a remand.’’ Henderson v. UCBR, 77 A.3d 699, 723 (Pa. Cmwlth. 2013).
Section 101.107 prohibits a referee from basing a decision on a legal issue other than the one found in the OES determination. However, although a remand is normally required to cure any prejudice to the claimant resulting from a change in legal theory from that found in the original Office of Employment Security determination, such a remand was not necessary where the case had previously been remanded and reheard numerous times and it was evident that the claimant had not been prejudiced by the change in legal theory from the original OES determination to the final Board order. Clark v. Unemployment Compensation Board of Review, 471 A.2d 1309 (Pa. Cmwlth. 1984); appeal after remand 497 A.2d 261 (Pa. Cmwlth 1985); appeal denied 527 A.2d 546 (Pa. 1987).
Burden of Proof
There was no error in the Unemployment Compensation Board’s shifting of the burden of proof to the employer to show that claimant was discharged for willful misconduct as the referee received permission from both parties to proceed under either section of the Administrative Agency Law. Feinburg v. Unemployment Compensation Board of Review, 635 A.2d 682 (Pa. Cmwlth. 1993); appeal denied 652 A.2d 840 (Pa. 1994).
Claimant was not denied due process by the shifting of the burden of proof before the Board when it changed the basis for disqualification from 43 P. S. § 802(e) to 43 P. S. § 802(b). Both parties were aware that the question was whether a discharge occurred or whether the claimant initiated the separation and both parties came to the hearing prepared to prove their version of the facts and rebut the other side’s testimony. Kligge v. Unemployment Compensation Board of Review, 491 A.2d 325 (Pa. Cmwlth. 1985).
Constitutional Rights
It was a violation of employer’s due process rights to a full hearing to disallow employer from raising an issue and hold that the regulations prevent the Board from recognizing that the Bureau did not rule upon an issue which was not waived. Classic Personnel v. Unemployment Compensation Board of Review, 617 A.2d 66 (Pa. Cmwlth. 1992).
Expressly Ruled Upon
The Board had the authority to consider the claimant’s ineligibility for benefits under section 402(e) of the act (43 P. S. § 802(e)) despite the claimant’s desire not to have that issue reviewed on appeal because the Board has the ability to review issues expressly decided by the referee. Jordan v. Unemployment Compensation Board of Review, 547 A.2d 811 (Pa. Cmwlth. 1988).
This and other provisions of the unemployment compensation regulations support the view that the referee and Board properly refused to rule on an issue which was not raised before the Office of Employment Security. Glesk v. Unemployment Compensation Board of Review, 525 A.2d 1249 (Pa. Cmwlth. 1987).
A decision by the Unemployment Compensation Board of Review may properly be vacated if it is based upon an issue which had not previously been considered by either the Office of Employment Security or the referee. Gould v. Unemployment Compensation Board of Review, 430 A.2d 731 (Pa. Cmwlth. 1981).
Notice of Hearing
‘‘Notice of hearing’’ subsection (b) refers to the notice required to be sent to the parties pursuant to 34 Pa. Code § 101.105(a) when, upon appeal to the Board from a referee’s decision, the Board determines that a further hearing is necessary. Torsky v. Unemployment Compensation Board of Review, 474 A.2d 1207 (Pa. Cmwlth. 1984).
When the Board disallows a claimant’s appeal from the referee’s decision on different grounds from that relied upon or considered in the referee’s determination, but fails to provide the required notice of hearing indicating the issues to be considered and fails to actually hold a hearing, the case will be remanded to the Board for a hearing and provision of the required notice of the issues to be considered. Libonate v. Unemployment Compensation Board of Review, 426 A.2d 247 (Pa. Cmwlth. 1981).
Proper Appeal
Although the unemployment claimant’s petitions for appeal from the job center did not raise any issues specifically, the issues which were decided by the job center were the same issues addressed by the referee and were subsequently discussed by the Unemployment Compensation Board of Review. Thus, pursuant to § § 101.87 and 101.107, the referee and Board correctly considered the Claimants’ appeals. Black Lick Trucking, Inc. v. Unemployment Compensation Board of Review, 667 A.2d 454 (Pa. Cmwlth. 1995).
Subsection (b)
Board acted within its powers under subsection (b) in ruling upon an issue which referee had remanded to OES, since the parties had agreed to have the referee decide the issue and the parties were not prejudiced by the Board’s action. Bennett v. Unemployment Compensation Board of Review, 491 A.2d 314 (Pa. Cmwlth. 1985).
Waiver
In unemployment compensation proceedings employer waived issue of whether claimant was fired for willful misconduct, and thus ineligible for benefits, where the theory was not raised before Bureau of Employment Security but was first advanced in Commonwealth Court. Wing v. Unemployment Compensation Board of Review, 436 A.2d 1179 (Pa. 1981).
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