Subchapter C. APPEALS FROM DETERMINATIONS OF DEPARTMENT
Sec.
101.81. Filing of appeal from determinations of Department.
101.82. Time for filing appeal from determination of Department.
101.83. Notification of filing of appeal.
101.84. Jurisdiction of appeal.
101.85. Notice of appeal hearing.
101.86. Appeal hearings.
101.87. Issues considered on original appeal.
101.88. Decision on original appeal.
101.89. Notice of decision.
101.90. Further appeal.§ 101.81. Filing of appeal from determination of Department.
(a) Appeal forms may be obtained from a Department appeal office, a workforce investment office or the Board’s appeals system administrator in Harrisburg and from the Department website (www.dli.state.pa.us).
(b) Information about filing an appeal may be obtained from a Department appeal office, Board office and the Department’s website. The Department will provide appeal instructions with each determination, including the address and fax number of a Board office, workforce investment office or a Department appeal office where appeals may be filed.
(c) An appeal from a determination of the Department shall be filed with a Department appeal office, a workforce investment office or a Board office and shall contain the following information:
(1) The name and address of the claimant.
(2) The Social Security number of the claimant, if known.
(3) The date of the determination which is being appealed.
(4) The reasons for appeal.
(5) The name and address of the appellant.
(d) Upon receipt of an appeal, the Department or the Board will docket and process the appeal form.
(e) The Board will consider a written objection to the Department’s determination as an appeal and process it under subsection (c) if the appellant does not complete the Department-provided appeal form.
Source The provisions of this § 101.81 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended September 19, 2003, effective September 20, 2003, 33 Pa.B. 4674. Immediately preceding text appears at serial pages (259528) to (259529).
Notes of Decisions Proper Appeal
Unemployment compensation claimant adequately preserved for appellate review all issues related to his appeal of referee’s decision to the Unemployment Compensation Board of Review even though he only stated that he did not agree with the decision; job center and referee considered whether claimant engaged in willful misconduct and parties raised no objections during the proceedings. Ductmate Ind. v. Unemployment Compensation Board of Review, 949 A.2d 338 (Pa. Cmwlth. 2008).
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).
Commonwealth Court could not consider documents relied upon by the Employer which were not part of the record. The documents, if part of the record, would not constitute a valid appeal because these documents did not manifest employer’s intent to appeal a determination under section 501(e) of the Unemployment Compensation Act (43 P. S. § 821(3)). Pa. Turnpike Commission v. Unemployment Comp. Bd. of Review, 991 A.2d 971 (Pa. Cmwlth. 2009).
Cross References This section cited in 34 Pa. Code § 101.82 (relating to time for filing appeal from determination of Department); and 34 Pa. Code § 101.102 (relating to form and filing of application for further appeal from decision of referee).
§ 101.82. Time for filing appeal from determination of Department.
(a) A party seeking to appeal a Department determination shall file an appeal in the form and manner specified in § 101.81 (relating to filing of appeal from determination of Department) and this section no later than 21 days after the ‘‘determination date’’ on the determination.
(a.1) The Department will mail a copy of the determination to the party’s last known post office address or transmit it electronically, as designated by the party.
(b) A party may file a written appeal by any of the following methods:
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
(2) Common carrier. An appeal may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date the workforce investment office, Board or Department appeal office received the appeal.
(3) Fax transmission.
(i) The filing date will be determined as follows:
(A) The date of receipt imprinted by the Department, the workforce investment office or the Board’s fax machine.
(B) If the Department, the workforce investment office or the Board’s fax machine does not imprint a legible date, the date of transmission imprinted on the faxed appeal by the sender’s fax machine.
(C) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal.
(ii) A party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(iii) A fax transmission is timely filed if it is received by the Department appeal office, workforce investment office or Board before midnight on the last day of the appeal period in accordance with this subsection.
(4) Electronic mail (e-mail).
(i) The date of filing is the receipt date recorded by the Department appeal office or the Board’s e-mail system, if the e-mail message is in a form capable of being processed by that system.
(ii) The Department will confirm receipt of the party’s e-mail appeal by sending the party an auto-reply e-mail. If the party does not receive an auto-reply e-mail, the Department has not successfully received the party’s appeal, and the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(iii) A party filing by e-mail shall comply with instructions concerning format. A party filing an appeal by e-mail is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(4.1) Pennsylvania UC Claims System.
(i) The date of filing is the receipt date recorded by the Pennsylvania UC Claims System. Following submission of the appeal, a notation will appear in the Pennsylvania UC Claims System to show that the Department successfully received the party’s appeal. Following submission of the appeal, the appeals section of the Pennsylvania UC Claims System will also show that the party’s appeal has been filed. If the Pennsylvania UC Claims System does not indicate that the party’s appeal has been filed, the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(ii) If the filing is untimely as a result of system or technological failure of the Pennsylvania UC Claims System, the date of filing will be redetermined through the adjudicatory process. The Board will make available to the Referee relevant Department records regarding system outages where a party alleges a late filing due to system or technological failure.
(5) Personal delivery to a workforce investment office or the Board. The filing date will be the date the appeal was personally delivered to the workforce investment office or the Board during its normal business hours.
(c) Appeal acknowledgement letter. After a party files an appeal using one of the methods provided in subsection (b), the Department or Board will send the party a letter acknowledging that it received the party’s appeal and the date on which the party filed the appeal.
Authority The provisions of this § 101.82 amended under section 203(d) of the Unemployment Compensation Law (43 P.S. § 763(d)) and section 506 of The Administrative Code of 1929 (71 P.S. § 186).
Source The provisions of this § 101.82 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended July 14, 1978, effective July 15, 1978, 8 Pa.B. 2002; amended September 19, 2003, effective September 20, 2003, 33 Pa.B. 4674; amended March 11, 2022, effective March 12, 2022, 52 Pa.B. 1480. Immediately preceding text appears at serial pages (374951) to (374954).
Notes of Decisions
Appeals by e-mail
The Board may not ignore documentary evidence of timely appeal by e-mail. Bennett v. UCBR, 33 A.3d 133, 138 (Pa. Cmwlth. 2011).
Board’s dismissal of appeal for untimeliness is affirmed based upon the regulation that when the litigant selects e-mail as the medium for appeal, the litigant assumes the risk that the appeal may not be timely filed for traditional reasons nunc pro tunc relief is not appropriate. McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006).
Appeals by Fax
A fax transmittal sheet showing unsuccessful delivery is not evidence of timely delivery. Lopresti v. UCBR, 55 A.3d 561, 563 (Pa. Cmwlth. 2012).
The Board may not ignore documentary evidence of timely appeal by fax. Wright v. UCBR, 41 A.3d 58, 64 (Pa. Cmwlth. 2011).
Appealing party in unemployment compensation case is responsible for the readability of fax sent for appeal purposes; party choosing to communicate by fax for any purpose accepts the risk of any delay, disruption, interruption of electronic signals, and readability of the document. Skowronek v. Unemployment Compensation Board of Review, 921 A.2d 555, 559 (Pa. Cmwlth. 2007).
Appeals by Mail
An envelope bearing no postmark, containing the employer’s appeal of a referee’s determination, was not received by the Department within 15 days of the mailing date of the determination, and therefore, the appeal could not be deemed mailed on postmark date. Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235 (Pa. Cmwlth. 1993).
A postmark which indicates that an appeal was mailed within the 15-day period satisfies the requirement for filing within the required time, even if the appeal is received after the end of the appeal period. UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344 (Pa. Cmwlth. 2001).
This section, as drafted does not recognize placing an appeal in the mail as the initiation of the appeal matter, it recognizes only the postmark date. Edwards v. Unemployment Compensation Board of Review, 639 A.2d 1279 (Pa. Cmwlth. 1994).
Where unemployment compensation hearing referee failed to retain envelope that claimant’s appeal was mailed in and failed to date-stamp the appeal when it was received, it was proper for the Unemployment Compensation Board of Review to consider testimony from claimant and her husband to determine whether claimant’s appeal was timely. Cumberland Valley Animal Shelter v. Unemployment Employment Compensation Board of Review, 881 A.2d 10, 13 (Pa. Cmwlth. 2005).
The postmark rule to determine mailing date was reasonable and a late mailing was not excusable in the absence of a deprival by the Board of the claimant’s right to appeal via fraud, negligence or wrongful conduct. Hoffman v. Unemployment Compensation Board of Review, 382 A.2d 797 (Pa. Cmwlth. 1978).
Date counsel placed claimant’s appeal in the mail with the correct amount of postage constituted the ‘‘filing’’ date for the purpose of determining whether claimant’s appeal was timely filed, rather than the date counsel initially placed the appeal in the mail that was returned for insufficient postage. Shea v. Unemployment Compensation Board of Review, 898 A.2d 31, 34 (Pa. Cmwlth. 2006).
‘‘the filing date must be discernable from either the face of a document or from the internal records of the court.’’ McKnight v. UCBR, 99 A.3d 946, 949 (Pa. Cmwlth. 2014).
A USPS barcode is not evidence of timely mailing. McKnight v. UCBR, 99 A.3d 946, 948-50 (Pa. Cmwlth. 2014).
Basis of Appeal
Claimant’s statement on Appeal form—‘‘I do not agree with this decision’’—was insufficient to state the basis of an appeal; there must be some indication of what error occurred and where the tribunal should focus its attention. Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1988); appeal dismissed 570 A.2d 1320 (Pa. 1990).
Burden of Proof
When the Bureau dismissed an appeal as untimely based on a receipt date beyond the appeal period and the letter bearing the postmark date of appeal had allegedly been misplaced through the negligence of the Bureau, the appellant bore the burden of presenting evidence that administrative irregularity, fraud, or its equivalent caused the failure to appeal on time. Trans-Eastern Inspection, Inc. v. Unemployment Compensation Board of Review, 420 A.2d 1354 (Pa. Cmwlth. 1980).
General Comments
The Unemployment Compensation Board of Review is bound to follow its own regulations in determining the perfection date of an appeal. Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290 (Pa. Cmwlth. 1996).
The language of this section reveals the need for appellants to ‘‘specifically advise’’ that they are filing an appeal. First National Bank of Bath v. Unemployment Compensation Board of Review, 619 A.2d 801 (Pa. Cmwlth. 1992).
An appeal to the Unemployment Compensation Board of Review must be filed within 15 days after the date of the referee’s decision, or that decision becomes final and the Board has no jurisdiction over the matter. UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344 (Pa. Cmwlth. 2001).
‘‘[T]he absence of [an] appeal in the Board’s record alone is not proof that the Board did not receive it. Its absence in the record, at best, gives rise to an inference that Claimant did not file a timely appeal in this case,’’ so the Board may not ignore uncontradicted documentary evidence to the contrary. Wright v. UCBR, 41 A.3d 58, 64 (Pa. Cmwlth. 2011).
Initiation of Appeal
The employer’s notation accompanying the Request for Relief from Charges form specifically advised the Bureau that it was appealing the Notice of Financial Determination thereby meeting the requirements of subsection (c). LTV Steel Company, Inc. v. Unemployment Compensation Board of Review, 620 A.2d 629 (Pa. Cmwlth. 1993).
‘‘the filing of an appeal from an eligibilty determination is separate and distinct from the filing of a request for relief from charges.’’ First Nat’l Bank v. UCBR, 619 A.2d 801, 804 (Pa. Cmwlth. 1992).
Nunc Pro Tunc Appeals
An untimely appeal may be considered timely only when ‘‘caused by extraordinary circumstances involving’’ fraud, a breakdown in the administrative process, or non-negligent conduct of the appellant or its counsel, but only if (1) ‘‘the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness,’’ (2) ‘‘the time period which elapses is of very short duration,’’ and (3) the ‘‘appellee is not prejudiced by the delay.’’ Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996).
If the postmark on the envelope of the mailing of a decision differs from the ‘‘decision mailing date,’’ an appellant may rely on that postmark as the date on which notification of the decision was actually mailed and as the date on which the appeal period begins. Raichle v. Board of Unemployment Compensation Board of Review, 535 A.2d 694 (Pa. Cmwlth. 1988).
Three days is a ‘‘short time’’ to file an appeal after having an opportunity to address the untimeliness, but an eleven-day delay shows negligence rather than ‘‘reasonable diligence’’ in filing a late appeal after having an opportunity to do so. UPMC Health Sys. v. UCBR, 852 A.2d 467, 470 (Pa. Cmwlth. 2004).
‘‘failure to follow the instructions in the notice of determination [does] not [constitute] extraordinary circumstances involving a non-neglignet act, or fraud or a breakdown in the administrative process’’ to forgive an untimely appeal.’’ Russo v. UCBR, 13 A.3d 1000, 1004 (Pa. Cmwlth. 2010).
Appellant before the Unemployment Compensation Board who files an appeal late because the appellant or appellant’s counsel was hospitalized may be allowed to file appeal nunc pro tunc. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996).
Personal Delivery of Appeals
Hand-delivery of an appeal one day late constituted untimeliness, and it was not unreasonable for the Board to reject the appeal. Moss v. Unemployment Compensation Board of Review, 557 A.2d 839 (Pa. Cmwlth. 1989).
Personal delivery to a workforce investment office or the Board excludes service centers. Russo v. UCBR, 13 A.3d 1000, 1002-03 (Pa. Cmwlth. 2010).
Cross References This section cited in 34 Pa. Code § 101.102 (relating to form and filing of application for further appeal from decision of referee).
§ 101.83. Notification of filing of appeal.
Notice of an appeal having been filed shall be furnished by the local employment office wherein the appeal was filed, to the central office of the Board and to each party to the claim proceedings, by personal delivery or by mailing it to his last known post office address.
Source The provisions of this § 101.83 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
§ 101.84. Jurisdiction of appeal.
(a) The Board may hear and dispose of an appeal without referring it to a referee. However, unless the Board assumes original jurisdiction, the appeal shall be assigned promptly to a referee for hearing.
(b) The Board may also remove or transfer an appeal pending before a referee at any time. When an appeal pending before a referee is transferred by the Board to another referee a hearing shall be held before the referee by whom the appeal is to be decided.
Source The provisions of this § 101.84 adopted August 26, 1970, effective August 27, 1 Pa.B. 435.
§ 101.85. Notice of appeal hearing.
(a) The tribunal by which the appeal is to be heard shall schedule the appeal promptly for hearing and give at least 7 days’ notice of the hearing to the parties and their counsel or authorized agent of record, specifying the date, hour and place of hearing and specific issues to be covered at the hearing.
(b) Exclusive of cases which involve an issue as to the amount or sufficiency of wages of a claimant in covered employment, an exception may be made to the 7-day rule and hearings may be scheduled upon shorter notice, but not less than 3 days, so that newly received appeals may be included in the itinerary of the referee of scheduled hearings at outlying points. If a hearing is scheduled with less than 7 days’ notice, affected parties shall be instructed to notify the referee immediately, if it is not convenient for them to attend the hearing. If it is inconvenient for an affected party to attend a hearing on short notice, the appeal shall be rescheduled promptly for hearing.
(c) If hearings on more than one appeal are to be scheduled and conducted jointly, each party shall be notified in his notice of hearing that a joint hearing will be held, that a single record of the proceedings will be made and that evidence introduced with respect to an appeal will be considered as introduced with respect to all.
Authority The provisions of this § 101.85 amended under sections 203(d) and 505 of the Unemployment Compensation Law (43 P. S. § § 763(d) and 825).
Source The provisions of this § 101.85 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended April 7, 1989, effective April 8, 1989, 19 Pa.B. 1550. Immediately preceding text appears at serial pages (124283) to (124284).
Notes of Decisions Scope and Review
This and other provisions of the unemployment compensation regulations support the view that referee and Board properly refused to rule on 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).
Notice
The Board’s failure to give notice to a claimant of hearings held to receive evidence from claimant’s employer and ‘‘similarly situated’’ claimants is a violation of notice requirements contained in subsection (a) and requires a remand. Allrutz v. Unemployment Compensation Board of Review, 463 A.2d 100 (Pa. Cmwlth. 1983).
§ 101.86. Appeal hearings.
(a) Hearings shall be held at places determined by the tribunal which shall be reasonably convenient to each of the parties concerned. During the hearing each party shall be given the opportunity to submit testimony or evidence in support of his contentions. Also, each party shall have the right to present oral or written argument and be afforded the opportunity to reply to the arguments and contentions of the other parties.
(b) If the scheduled hearing is not in the county where the claimant regularly reports for work, the employer may make a written request that a separate hearing be scheduled in such county, and such request shall be granted where it is established that it is impracticable because of the distance for the employer or his representative to attend the regularly scheduled hearing in the area where the claimant is located.
(c) The hearing of an appeal from the decision of the Department shall be conducted in the manner provided in § 101.21 (relating to conduct of hearings).
Source The provisions of this § 101.86 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Where the claimant’s employer testified at the referee’s hearing by means of a telephone conference call and referred to documents in his possession, the provisions of this section require that the claimant be given access to the documents to refer to in cross-examining or that the documents be proved accurate and offered into evidence. Chobert v. Unemployment Compensation Board of Review, 484 A.2d 223 (Pa. Cmwlth. 1984).
§ 101.87. Issues considered on original appeal.
When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby.
Source The provisions of this § 101.87 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Basis of Decision
Referee’s reliance on a legal theory not relied upon by the Office of Employment Security will not result in a reversal of the referee’s decision unless reliance on the issue results in surprise or prejudice to the claimant. Hine v. Unemployment Compensation Board of Review, 520 A.2d 102 (Pa. Cmwlth. 1987).
Compensation Denied
Denial of unemployment compensation solely on the basis of section 3 of the Unemployment Compensation Law does not violate the provisions of this regulation when the claimant is dismissed from employment due to conviction of welfare fraud and is therefore unemployed as a result of her own fault. Wilson v. Unemployment Compensation Board of Review, 428 A.2d 288 (Pa. Cmwlth. 1981).
Evidence
The Unemployment Compensation Board of Review may only consider the merits of issues delineated in the Bureau of Employment Security’s determination notice. Hanover Concrete Co. v. Unemployment Compensation Board of Review, 402 A.2d 720 (Pa. Cmwlth. 1979).
This regulation requires that the evidence adduced and the determination made at the referee’s hearing be limited to the legal issue ruled on by the Bureau in its notification of ineligibility for benefits. Corressel v. Unemployment Compensation Board of Review, 385 A.2d 615 (Pa. Cmwlth. 1978).
The evidence adduced at the referee’s hearing must be limited to the reasons stated in the notice of ineligibility given to the claimant by the Bureau. Bilsing v. Unemployment Compensation Board of Review, 382 A.2d 1279 (Pa. Cmwlth. 1978).
Expressly Ruled Open
The Department is deemed to have ruled on all matters and issues relating to a claim for benefits. Therefore the Board erred when it considered the merits of issues not delineated in the O.E.S.’s determination notice. Harwood v. Unemployment Compensation Board of Review, 531 A.2d 823 (Pa. Cmwlth. 1987).
This and other provisions of the unemployment compensation regulations support the view that the referee and Board properly refused to rule on 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).
General Comment
This section limits the referee to a consideration of those issues expressly ruled upon by the Office of Employment Security from which the appeal was filed. Sterling v. Unemployment Compensation Board of Review, 474 A.2d 389 (Pa. Cmwlth. 1984).
This section merely limits the referee to considering issues raised by the action of the Office of Employment Security, unless the parties agree otherwise. Gould v. Unemployment Compensation Board of Review, 466 A.2d 750 (Pa. Cmwlth. 1983).
Issues Properly Considered
Where the Bureau’s initial determination in favor of the claimant stated only that she had been an employee and not an independent contractor, but the employer’s appeal to the referee also raised the issue of voluntary termination, the referee was mistaken in his belief that he could not hear the second issue. Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002).
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).
Where demotion was raised in the context of litigation of the issue of ‘‘cause of a necessitous and compelling nature,’’ the court found that the Office of Employment Security had considered the issues for purposes of this regulation. Greco v. Unemployment Compensation Board of Review, 560 A.2d 300 (Pa. Cmwlth. 1989).
The Board had the authority to consider the claimant’s ineligibility under its ability to review the issues expressly ruled upon in the referee’s decision, despite the claimant’s desire not to have that issue reviewed on appeal. Jordan v. Unemployment Compensation Board of Review, 547 A.2d 811 (Pa. Cmwlth. 1988).
Claimant, who recognized that willful misconduct was a potential issue, consented, by his conduct, to an issue not raised in the Office of Employment Security determination and was not prejudiced by the referee’s decision to consider willful misconduct instead of voluntary guilt as a basis for denying benefits. Brooks v. Unemployment Compensation Board of Review, 547 A.2d 493 (Pa. Cmwlth. 1988).
Where referee did not rule on claimant’s work performance, but gave claimant opportunity for extension of proceedings with notice that issue of work performance was to be addressed, claimant, who refused extension, could not claim unfair surprise so as to preclude the referee or Board from ruling on an issue. Shearer v. Unemployment Compensation Board of Review, 527 A.2d 615 (Pa. Cmwlth. 1987).
Referee properly considered and ruled upon issue on appeal, despite fact that employer did not reopen inquiry into issue, since Office of Employment Security had expressly ruled upon and delineated issue in its determination notice. Wilder & Miller v. Unemployment Compensation Board of Review, 525 A.2d 852 (Pa. Cmwlth. 1987).
Where the claimant did not consent to consideration of section 402(e) of the Unemployment Compensation Law (43 P. S. § 802(e)) and the Bureau did not rule on the issue, the referee could not change the legal basis for denial of unemployment compensation at the hearing level. Giddens v. Unemployment Compensation Board of Review, 516 A.2d 866 (Pa. Cmwlth. 1986).
A referee on appeal must consider only those charges of willful misconduct delineated in the OES determination notice; therefore, to allow a critique of other conduct against which charge the employer is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited. Comp v. Unemployment Compensation Board of Review, 478 A.2d 503 (Pa. Cmwlth. 1984).
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).
If the Office of Employment Security notifies a claimant of ineligibility by reason of willful misconduct, the referee and the Board of Review may not determine that it is a case of a voluntary quit. The matter will be remanded for further consideration of the issue ruled on by the Office of Employment Security. Feinberg v. Unemployment Compensation Board of Review, 448 A.2d 664 (Pa. Cmwlth. 1982).
Since the evidence adduced and determinations made at the referee’s hearing are limited to the legal issues ruled on by the Bureau, to allow a determination of a legal issue which the claimant is unprepared to defend or explain is fundamentally unfair and will not be allowed. Goodman v. Unemployment Compensation Board of Review, 447 A.2d 1127 (Pa. Cmwlth. 1982).
If the Office of Employment Security expressly rules upon an issue, the referee on appeal may rule upon that issue, even if the claimant does not intend to reopen inquiry into that particular issue. Lenz v. Unemployment Compensation Board of Review, 432 A.2d 1149 (Pa. Cmwlth. 1981).
Party Approval
Referee properly refused to consider whether claimant’s switch to part-time employment constituted a voluntary termination of full-time employment without cause of a compelling nature, since claimant would not agree to have that issue determined. Wilder & Miller v. Unemployment Compensation Board of Review, 525 A.2d 852 (Pa. Cmwlth. 1987).
Where the parties have consented, under this section, to have a referee rule on an issue not addressed by the Office of Employment Security decision, but where the referee declined to reach the issue, the Unemployment Compensation Board of Review should obtain a second independent expression of the parties’ consent to rule on the unaddressed issue, under 34 Pa. Code § 101.107(b). Bennett v. Unemployment Compensation Board of Review, 491 A.2d 314, 318 (Pa. Cmwlth. 1985) (dissenting opinion).
Remand
The Board had the authority to remand to the referee to determine the issue of voluntary termination, which had been properly raised by the employer. Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002).
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).
§ 101.88. Decision on original appeal.
The tribunal shall affirm, modify or reverse the decision of the Department as shall appear just and proper from the evidence submitted. The decision shall be rendered promptly after the conclusion of the hearing and shall set forth the following:
(1) The names and addresses of parties involved, appeal number and claimant’s social security number.
(2) A history of the case, including the date of application for benefits, claim week ending dates, date of appeal and identity of appellant.
(3) The date and nature of the determination (decision) being appealed.
(4) Findings of fact.
(5) Reasons for the decision.
(6) Conclusions of law.
(7) The order.
Source The provisions of this § 101.88 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Decision
Because the alleged unwritten assurance of the referee that he would issue a decision in favor of the claimant did not conform to the requirements of 34 Pa. Code § 101.88 (relating to decision on original appeal) and because there was no copy mailed to the parties as required by 34 Pa. Code § 101.89 (relating to notice of decision), there was no formal decision issued. Zinicola v. Unemployment Compensation Board of Review, 407 A.2d 474 (Pa. Cmwlth. 1979).
Dismissal of Appeal
The dismissal, based upon the claimant’s failure to appear, of an appeal from a finding of noneligibility for benefits based upon the self-employment of the claimant, will be reversed where the referee has failed to make the required findings of fact as to self-employment as required by paragraph (4), but rather dismisses the claim merely because of claimant’s failure to attend the hearing, and where the claimant states reasons for his failure to appear in his petition for appeal to the Board, which reasons are not evaluated by the Board to determine if they constitute proper cause for claimant’s absence. Eckert v. Unemployment Compensation Board of Review, 483 A.2d 1059 (Pa. Cmwlth. 1984).
Findings of Fact
Board’s failure to comply with the mandates of Unemployment Compensation Law (43 P. S. § 824), as well as with this section promulgated by Board itself, warranted vacation of order and remand for further proceedings, where Board did not make findings of fact or conclusions of law based on evidence presented to referee, but instead based on appeal of claimants’ partner. McGoldrick v. Unemployment Compensation Board of Review, 526 A.2d 461 (Pa. Cmwlth. 1987).
Cross References This section cited in 34 Pa. Code § 101.109 (relating to decision of Board).
§ 101.89. Notice of decision.
A copy of the decision of the tribunal shall be mailed to each party’s last known post office address or transmitted electronically, as designated by the party, including each party’s counsel or authorized agent. The decision date shall be the date the decision is posted on the Pennsylvania UC Claims System and available for viewing.
Authority The provisions of this § 101.89 amended under section 203(d) of the Unemployment Compensation Law (43 P.S. § 763(d)) and section 506 of The Administrative Code of 1929 (71 P.S. § 186).
Source The provisions of this § 101.89 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended March 11, 2022, effective March 12, 2022, 52 Pa.B. 1480. Immediately preceding text appears at serial pages (259537) to (259538).
Notes of Decisions The mailing of a referee’s decision in an employment compensation case to an address with an incorrect zip code was an administrative breakdown allowing an employer to take an untimely appeal. U. S. Postal Service v. Unemployment Compensation Board, 620 A.2d 572 (Pa. Cmwlth. 1993).
Because the alleged unwritten assurance of the referee that he would issue a decision in claimant’s favor did not conform to the requirements of 34 Pa. Code § 101.88 (relating to decision on original appeal) and because there was no copy mailed to the parties as required by 34 Pa. Code § 101.89 (relating to notice of decision), there was no formal decision issued. Zinicola v. Unemployment Compensation Board of Review, 407 A.2d 474 (Pa. Cmwlth. 1979).
§ 101.90. Further appeal.
(a) Within 21 days after the decision of a referee, the claimant, the Department or an affected employer may file an application for a further appeal with the Board.
(b) The decision of the Board on an original appeal will become final the date it is rendered. Within 30 days after the decision of the Board becomes final, the claimant, the Department or an affected employer may file an appeal with the Commonwealth Court.
Authority The provisions of this § 101.90 amended under section 203(d) of the Unemployment Compensation Law (43 P.S. § 763(d)) and section 506 of The Administrative Code of 1929 (71 P.S. § 186).
Source The provisions of this § 101.90 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended July 14, 1978, effective July 15, 1978, 8 Pa.B. 2002; amended March 11, 2022, effective March 12, 2022, 52 Pa.B. 1480. Immediately preceding text appears at serial pages (259538) and (299543).
Notes of Decisions Notice of Right to Appeal
Alleged inadequacies in a notice of right to appeal to the Unemployment Compensation Board of Review given in a referee’s decision denying benefits do not entitle a claimant to nunc pro tunc consideration of an untimely appeal because due process does not require an agency to provide notice of right to appeal when the agency or the legislature has established a duly published procedure for hearing or appeal, and the procedure for appeal to the Board is clearly enunciated in statutes and regulations. DiIenno v. Unemployment Compensation Board of Review, 429 A.2d 1288 (Pa. Cmwlth. 1981).
The Unemployment Compensation Board of Review has no duty to provide a party with notice of right to appeal, since the procedure for appealing from the decision of a referee is clearly enunciated in statutes and the regulations of the Board. Mogil v. Unemployment Compensation Board of Review, 413 A.2d 480 (Pa. Cmwlth. 1980).
The failure of a notice of right to appeal to inform a claimant of the right to request oral argument and present a brief or further testimony does not constitute a denial of due process, since the statutes and regulations concerning appeals from decisions of the referee clearly set out the procedure for such appeals. Walker v. Unemployment Compensation Board of Review, 381 A.2d 1353 (Pa. Cmwlth. 1978).
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