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Pennsylvania Code



Subchapter D. APPEALS FROM DECISION OF REFEREE


Sec.


101.101.    Review by Board.
101.102.    Form and filing of application for further appeal from decision of referee.
101.103.    Notification of filing of application for further appeal.
101.104.    Allowance or disallowance of appeal.
101.105.    Notice of hearing.
101.106.    Scope of review.
101.107.    Issues considered on appeal.
101.108.    Appeal hearings.
101.109.    Decision of Board.
101.110.    Notice of decision of Board.
101.111.    Reconsideration by Board.
101.112.    Appeal from decision of Board.

Notes of Decisions

   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).

§ 101.101. Review by Board.

 Upon application to the Board (petition for further appeal to the Board), or on its own motion, the Board may review an appeal which has been decided by a referee. Notice of the removal of a case to the Board shall be mailed to the last known post office address of each interested party.

Source

   The provisions of this §  101.101 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.

§ 101.102. Form and filing of application for further appeal from decision of referee.

 A party shall file an appeal from a referee’s decision in accordance with § §  101.81 and 101.82 (relating to filing of appeal from determination of Department; and time for filing appeal from determination of Department).

Source

   The provisions of this §  101.102 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 page (255873).

Notes of Decisions

   Jurisdiction

   An improper signature which may have technically violated the regulations of the Board regarding the perfection of an appeal does not create a jurisdictional issue capable of being raised in the first instance on judicial review if the appeal was instituted within the 15-day statutory time period. Clowney v. Unemployment Compensation Board of Review, 421 A.2d 515 (Pa. Cmwlth. 1980).

   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).

Cross References

   This section cited in 34 Pa. Code §  101.111 (relating to reconsideration by Board).

§ 101.103. Notification of filing of application for further appeal.

 Notice of the application for the allowance of an appeal (petition for further appeal) shall be furnished by the local employment office wherein such application 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 §  101.103 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.

Notes of Decisions

   Adequate Notice

   A claimant who was informed orally by an unemployment office employe of the former employer’s appeal of the referee’s decision and received written notification enabling him to attend an evidentiary hearing scheduled by the Board received adequate notice of appeal pursuant to the requirements of this regulation, and the claimant was not prejudiced by the Board’s action. Neimeic v. Unemployment Compensation Board of Review, 430 A.2d 697 (Pa. Cmwlth. 1981).

   Inadequate Notice

   If an employer appeals an adverse decision to the Board and the claimant does not receive the notice required by this regulation, the right of the claimant to oral or written argument under 34 Pa. Code §  101.104(e) (relating to allowance or disallowance of appeal) is violated. Mileski v. Unemployment Compensation Board of Review, 379 A.2d 643 (Pa. Cmwlth. 1977).

   Presumptions

   If a claimant alleges nonreceipt of the notice of appeal required under this regulation and the record is silent on the point, notification will not be presumed. Mileski v. Unemployment Compensation Board of Review, 379 A.2d 643 (Pa. Cmwlth. 1977).

§ 101.104. Allowance or disallowance of appeal.

 (a)  The Board may allow or disallow any application for a further appeal without hearing, solely on the basis of the application and the record.

 (b)  If the further appeal is disallowed, the Board will enter an order of disallowance, notification or a copy of which order shall be mailed to each party, his counsel or authorized agent, at their last known post office addresses.

 (c)  If the further appeal is allowed by the Board, or if the Board removes an appeal from the referee to the Board and on its own motion assumes jurisdiction of the appeal, notification shall be mailed to the last known post office address of each interested party. The Board will review the previously established record and determine whether there is a need for an additional hearing. Under section 504 of the Unemployment Compensation Law (43 P. S. §  824), the Board may affirm, modify or reverse the decision of the referee on the basis of the evidence previously submitted in the case, or the Board may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision. The further appeal shall be allowed and additional evidence required in any of the following circumstances:

   (1)  Whenever the further appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous.

   (2)  It appears that there may have been a denial of a fair hearing under the rules.

   (3)  Under §  101.24 (relating to reopening of hearing) a request for reopening received after the decision of the referee was issued which constitutes a request for further appeal to the Board.

 (d)  If the Board determines that a further hearing is necessary, the case shall be remanded to a referee for the purpose of scheduling another hearing, at which hearing the referee shall serve as a hearing officer for the Board, to receive from the parties the additional information as may be pertinent and material to a proper conclusion in the case. After the record has been completed, the entire file and record of evidence shall be returned to the Board for its consideration and the further action as may be deemed appropriate.

 (e)  Whether or not another hearing is scheduled in connection with the further appeal, any of the interested parties may file a written request for oral or written argument. In response to the request, or on a motion by the Board, oral argument may be scheduled before the Board, at which time written briefs with five copies may be submitted for the consideration of the Board. Otherwise, the normal time allowed for submitting written argument shall be 7 days from the date of the request, which, with the approval of the Board, may be extended due to extenuating circumstances. Each party shall be afforded the opportunity to reply to the arguments and contentions of the other parties.

Source

   The provisions of this §  101.104 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended January 19, 1979, effective January 20, 1979, 9 Pa.B. 250. Immediately preceding text appears at serial page (9420).

Notes of Decisions

   Discretion of the Board

   The Unemployment Compensation Board of Review has wide latitude to order a remand hearing and thus this section does not require a de novo hearing. Stop-N-Go of Western Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 707 A.2d 560 (Pa. Cmwlth. 1998).

   It is clearly within the Board’s discretion to remand a case for purposes of receiving additional evidence in situations when the Board deems the record inadequate. Cooper Industries, Inc. v. Unemployment Compensation Board of Review, 555 A.2d 969 (Pa. Cmwlth. 1989).

   When an application for appeal is made it is within the Board’s discretion to permit the taking of additional evidence whenever the record below is silent, incomplete or erroneous regarding a material point or there appears to have been a denial of a fair hearing. Browning-Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 532 A.2d 1266 (Pa. Cmwlth. 1987); appeal denied 541 A.2d 1139 (Pa. 1988).

   The Board’s failure to address the merits of the claimant’s appeal during a remand hearing was not error because the Board has discretionary power to decide when a remand hearing is necessary and what issues may be addressed during the hearing. Harrison v. Unemployment Compensation Board of Review, 457 A.2d 238 (Pa. Cmwlth. 1983).

   This section grants wide latitude to the Board in ordering a remand. Clowney v. Unemployment Compensation Board of Review, 421 A.2d 515 (Pa. Cmwlth. 1980).

   The decision to grant a remand is within the Board’s discretion. Shriner v. Unemployment Compensation Board of Review, 400 A.2d 934 (Pa. Cmwlth. 1979).

   Evidence

   The Board did not violate subsection (c) by considering evidence of the fact that the claimant had received an associate degree in applied science even though this evidence was not produced at the referee’s hearing but learned by the Board from the claimant’s petition for appeal from the referee’s decision, since there was sufficient evidence in the record that the claimant had in fact received formal electronics training. Ellwood City Hospital v. Unemployment Compensation Board of Review, 457 A.2d 231 (Pa. Cmwlth. 1983).

   Further Hearing

   If a party fails to appear at a hearing and, on appeal to the Board, asserts proper cause for its nonappearance, including not receiving or not timely receiving a hearing notice, the Board must remand the record to allow the nonappearing party to submit evidence regarding its nonappearance, but a remand hearing is unnecessary if the reasons proffered are clearly legally insufficient to support the finding of proper cause. Volk v. UCBR, 49 A.3d 38, 47 (Pa. Cmwlth. 2012).

   A further hearing on the claimant’s health problems is inappropriate if the claimant admits quitting voluntarily because of dissatisfaction with her new work schedule and claimant’s physician testifies that he advised claimant against quitting. Martin v. Unemployment Compensation Board of Review, 407 A.2d 96 (Pa. Cmwlth. 1979).

   When the claimant admits to having engaged in acts constituting willful misconduct and does not request a hearing, it is not an abuse of discretion for the Board of Review to disallow an appeal since it is not required to provide a hearing as a matter of right and may decide an appeal without taking additional evidence or hearing oral arguments. Chambers v. Unemployment Compensation Board of Review, 318 A.2d 422 (Pa. Cmwlth. 1974).

   Petition for Appeal

   A letter sent by an employer to a referee, in which the employer demanded that the matter be turned over to higher authorities, was a petition of appeal and was properly treated as such under §  101.104(c) and (d). Shriner v. Unemployment Compensation Board of Review, 400 A.2d 934 (Pa. Cmwlth. 1979).

   Referee’s Decision

   Employer was prejudiced by referee’s decision to ‘‘discredit completely and eviscerate the value’’ of evidence admitted. Philadelphia Electric Company v. Unemployment Compensation Board of Review, 565 A.2d 1246 (Pa. Cmwlth. 1989).

   Right to Argument

   When the Board files a decision and order without notifying the claimant that his request for oral argument has been denied and without allowing time for the claimant to file a written brief in lieu of oral argument, there is a denial of the claimant’s statutory and due process right to file a brief. Sacks v. Unemployment Compensation Board of Review, 429 A.2d 136 (Pa. Cmwlth. 1981); appeal after remand 459 A.2d 461 (Pa. Cmwlth. 1983).

   If an employer appeals an adverse decision to the Board but the claimant does not receive notice of appeal as required under 34 Pa. Code §  101.103 (relating to notification of filing of application for further appeal), the right of the claimant to oral or written argument under 34 Pa. Code §  101.104(e) is violated. Mileski v. Unemployment Compensation Board of Review, 379 A.2d 643 (Pa. Cmwlth. 1977).

§ 101.105. Notice of hearing.

 (a)  If the Board determines that a further hearing is necessary, the tribunal shall give at least 7 days’ notice of the scheduled hearing to the parties and their counsel or authorized agent of record, with specific instructions regarding the date, hour and place of hearing, and specific issues to be covered at the hearing.

 (b)  If hearings on more than one appeal are to be scheduled and conducted jointly, each party shall be notifed 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 §  101.105 amended under sections 203(d) and 505 of the Unemployment Compensation Act (43 P. S. § §  763(d) and 825).

Source

   The provisions of this §  101.105 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 page (126521).

Notes of Decisions

   Preservation of Issues

   The Board did not commit an error of law when it refused to remand a matter for the taking of additional testimony because the claimant failed to preserve the issue of a due process denial. Dehus v. Unemployment Compensation Board of Review, 545 A.2d 434 (Pa. Cmwlth. 1988).

§ 101.106. Scope of review.

 In connection with the consideration of an appeal to the Board from the decision of a referee, the Board may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted, or direct the taking of additional testimony. In any case the Board may limit the parties to oral argument or the filing of a written argument or both.

Source

   The provisions of this §  101.106 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.

Notes of Decisions

   Illustrative Cases

   The Unemployment Compensation Board of Review’s finding that the claimant was unable and unavailable for work improperly relied solely upon evidence not admitted into evidence and the Board’s failure to take additional testing restricted the Board’s review to the evidence submitted to the referee. Pifer v. Unemployment Compensation Board of Review, 639 A.2d 1293 (Pa. Cmwlth. 1994).

   Limitations on Review

   Board did not err by failing to consider letter attached as exhibit to brief; Board is restricted to review of the evidence submitted at hearing. Tener v. Unemployment Compensation Board of Review, 568 A.2d 733 (Pa. Cmwlth. 1990).

   Because the Board is restricted to review of evidence previously submitted, post-hearing factual communications to the Board may not be considered. Perrelli v. Unemployment Compensation Board of Review, 426 A.2d 1272 (Pa. Cmwlth. 1981).

§ 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).

§ 101.108. Appeal hearings.

 (a)  If the Board determines that a further hearing is necessary, such hearing shall be held at a location to be determined by the Board and shall be conducted in the manner provided in the general rules as set forth in this part. Hearings for taking additional evidence shall be held at places reasonably convenient to the parties concerned.

 (b)  Where an appeal is remanded to a referee for the taking of additional evidence, the referee shall either render a new decision or submit the entire file and completed record of testimony for Board consideration and determination, as directed in the remanding order of the Board.

Source

   The provisions of this §  101.108 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.

Notes of Decisions

   Evidence

   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, warrants 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).

   Remand Hearing

   It is clearly within the Board’s discretion to remand a case for purposes of receiving additional evidence in situations when the Board deems the record inadequate. Cooper Industries, Inc., v. Unemployment Compensation Board of Review, 555 A.2d 969 (Pa. Cmwlth. 1989).

   A remand to a referee for a new decision under subsection (b) of this section does not give the employer an unfair advantage where the employer’s evidence does not materially differ from one hearing to another. Lowe v. Unemployment Compensation Board of Review, 460 A.2d 870 (Pa. Cmwlth. 1983).

   The Board’s failure to address the merits of the claimant’s appeal during a remand hearing was not error because the Board has discretionary power to decide when a remand hearing is necessary and what issues may be addressed during the hearing. Harrison v. Unemployment Compensation Board of Review, 457 A.2d 238 (Pa. Cmwlth. 1983).

§ 101.109. Decision of Board.

 The Board may affirm, modify, or reverse the findings of fact and the decision of the referee as shall appear just and proper on the basis of all the evidence submitted in the case. The decision shall set forth information described in §  101.88 (relating to decision on original appeal).

Source

   The provisions of this §  101.109 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.

§ 101.110. Notice of decision of Board.

 A copy of the decision of the Board 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 §  101.110 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 §  101.110 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 page (259540).

§ 101.111. Reconsideration by Board.

 (a)  Within 15 days after the issuance of the decision of the Board, as may be determined by the provisions of §  101.102 (relating to form and filing of application for further appeal from decision of referee), any aggrieved party may request the Board to reconsider its decision and if allowed, to grant further the opportunity to do the following:

   (1)  Offer additional evidence at another hearing.

   (2)  Submit written or oral argument.

   (3)  Request the Board to reconsider the previously established record of evidence.

 (b)  The requests will be granted only for good cause in the interest of justice without prejudice to any party. The parties will be notified of the ruling of the Board on each such request. The request for reconsideration and the ruling of the Board shall be made a part of the record and subject to review in connection with any further appeal to the Commonwealth Court.

Source

   The provisions of this §  101.111 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended July 14, 1978, effective July 15, 1978, 8 Pa.B. 2002. Immediately preceding text appears at serial page (32171).

Notes of Decisions

   Denial of Application

   The Board’s denial of an application for rehearing was not an abuse of its discretion where there is no allegation that the additional evidence was not available at the time of the referee’s hearing and there is no explanation for a 9 month delay between discovery of the additional evidence and the rehearing request. Department of Auditor General v. Unemployment Compensation Board of Review, 484 A.2d 829 (Pa. Cmwlth. 1984).

   Denial of Reconsideration

   The Board is acting properly in refusing to grant a request for reconsideration if the only evidence a claimant has to offer upon reconsideration is evidence which he has already offered in the referee’s hearing. Keiper v. Unemployment Compensation Board of Review, 434 A.2d 874 (Pa. Cmwlth. 1981).

   Failure to Petition

   The validity of an employer’s no-solicitation rule, used as a basis for denying unemployment benefits to claimant for willful misconduct when he repeatedly violated the rule, was not subject to beingreconsidered on remand of the case, notwithstanding employer’s agreement to revoke the rule after completion of the case, when employer’s agreement remained outside the record due to claimant’s failure to petition for reconsideration of the board’s decision in light of this additional evidence. Stratigos v. Unemployment Compensation Board of Review, 486 A.2d 557 (Pa. Cmwlth. 1985).

   Good Cause

   The Board’s grant of a request for reconsideration where legal theories or authorities were previously unconsidered constituted ‘‘good cause’’ and not an abuse of discretion, even absent a clear statement that its prior decision was erroneous. Georgia-Pacific Corp. v. Unemployment Compensation Board of Review, 630 A.2d 948 (Pa. Cmwlth. 1993).

   Where an employer requested and received a continuance of a hearing because no one with firsthand testimony was available, then failed to provide a witness with firsthand knowledge at the rescheduled hearing, the action of the Board in granting employer’s request for reconsideration to provide firsthand testimony was not taken for good cause as required by subsection (b). Bennett v. Unemployment Compensation Board of Review, 470 A.2d 203 (Pa. Cmwlth. 1984).

   Grant of Reconsideration

   The Board must clearly set forth in the record the basis upon which it grants reconsideration of a decision; allegations unsubstantiated by any evidence of record cannot support a decision of the Board to reopen a case, particularly where the appellant has not been given the opportunity to refute such allegations. Grcich v. Unemployment Compensation Board of Review, 427 A.2d 299 (Pa. Cmwlth. 1981); reversed and remanded 440 A.2d 681 (Pa. 1982).

   Inadequate Record

   Except in extraordinary circumstances, the court will not reverse or remand an agency decision on the ground of inadequacy if the record where means provided for the same relief from the agency are not utilized, especially where the court is not told what evidence should be included in the record but has not been. Walsh v. Unemployment Compensation Board of Review, 329 A.2d 523 (Pa. Cmwlth. 1975).

   Reconsideration

   The employer’s failure to appear at a hearing held only 15 miles away in a town where the Bureau’s office was located is not grounds for reconsideration if the employer gives no reason for failing to appear. Flanagan v. Unemployment Compensation Board of Review, 407 A.2d 471 (Pa. Cmwlth. 1979).

   The Unemployment Compensation Board of Review abused its discretion in granting the employer’s reconsideration petition, in which it alleged that the Board’s decision was based upon hearsay evidence, where any hearsay objection or question regarding credibility should have been made before it requested reconsideration from the Board. Ensle v. Unemployment Compensation Board of Review, 740 A.2d 775 (Pa. Cmwlth. 1999).

   Timeliness

   A claimant’s failure to request reconsideration within fifteen days of the Board’s decision prior to filing an appeal of the Board’s decision with the court was not a failure to exhaust his administrative remedies where the claimant’s reasons for his failure to appear at the referee’s hearing were already in evidence at the time the Board rendered its decision. Eckert v. Unemployment Compensation Board of Review, 483 A.2d 1059 (Pa. Cmwlth. 1984).

   The Court will not determine whether an appeal notice is misleading where the notice is not part of the record before it and will not remand for a determination of whether the appeal notice was misleading since the claimant failed to submit a petition for reconsideration to the Board within the fifteen day period specified in this section raising that issue. Kustafik v. Unemployment Compensation Board of Review, 462 A.2d 947 (Pa. Cmwlth. 1983).

   A disappointed litigant before the Board may file a petition for rehearing or reconsideration with the effect that the limitation of time for appeal from the original adjudication, as well as the decision on the petition for rehearing, is measured from the entry of the latter decision, if such a petition is timely filed. Walsh v. Unemployment Compensation Board of Review, 329 A.2d 523 (Pa. Cmwlth. 1974).

§ 101.112. Appeal from decision of Board.

 (a)  An order of the Board disallowing a further appeal from the decision of a referee, or the decision of the Board where an appeal is allowed, shall become final the date it is rendered.

 (b)  Within 30 days after the order or decision of the Board becomes final, the claimant, the Department, or any affected employer may take an appeal to the Commonwealth Court.

Source

   The provisions of this §  101.112 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended July 14, 1978, effective July 15, 1978, 8 Pa.B. 2002. Immediately preceding text appears at serial page (32171).

Notes of Decisions

   Interlocutory Order

   An attempt to appeal an order for an additional hearing granted by the Unemployment Compensation Board is not an attempt to appeal a final order within the meaning of the Administrative Agency Law, and is interlocutory in nature. The provisions of 34 Pa. Code §  101.112 (relating to appeal from decision of Board) do not require the Board to give an adverse party an opportunity to oppose a request for reconsideration before it is acted upon. Unemployment Compensation Board of Review v. Holley, 353 A.2d 905 (Pa. Cmwlth. 1976).



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