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EDWARD MARSHALL v. UNEMPLOYMENT COMPENSATION BOARD REVIEW. (MARSHALL UNEMPLOYMENT COMPENSATION CASE.) (01/14/55)

January 14, 1955

EDWARD MARSHALL, APPELLANT,
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW. (MARSHALL UNEMPLOYMENT COMPENSATION CASE.)



Appeal, No. 314, Oct. T., 1954, by claimant, from decision of Unemployment Compensation Board of Review, dated June 22, 1954, Decision No. B-36868, in re claim of Edward Marshall. Order affirmed.

COUNSEL

Albert M. Roth, Philadelphia, for appellant.

William L. Hammond, Special Deputy Attorney General, with him Frank F. Truscott, Attorney General, for appellee.

Before Rhodes, P. J., Ross, Gunther, Wright, Woodside and Ervin, JJ. (hirt, J., absent).

Author: Woodside

[ 177 Pa. Super. Page 261]

OPINION BY WOODSIDE, J.,

In this unemployment compensation case the question is whether the claimant filed a timely appeal from the decision of the referee denying benefits to him. The Board of Review without passing on the merits of the claim, dismissed the appeal as having been taken too late.

Section 502 of the Unemployment Compensation Law of December 5, 1936, P. L. 2897, 43 PS § 822 as last amended, relates to appeals from the referee's decision to the board. It provides inter alia as follows:

"The parties and the department shall be duly notified of the referee's decision, and the reasons therefor, which shall be deemed the final decision of the board, unless within ten days after the date of such decision the board acts on its own motion, or upon application, permits any of the parties or the department to institute a further appeal before the board..."

Where an Act of Assembly fixed the time within which an appeal may be taken, courts have no power to extend it or to allow an appeal nunc pro tunc, except where there is a showing of fraud or its equivalent. Something more than mere hardship is necessary to justify an extension of time or an allowance of the act nunc pro tunc. Tuttle Unemployment Compensation Case, 160 Pa. Superior Ct. 46, 47, 49 A.2d 847 (1946); Gay Unemployment Compensation Case, 172 Pa. Superior Ct. 200, 201, 92 A.2d 901 (1952). Thus, it has been held that a person who did not file his appeal in time because of illness of his counsel or because he was out of the state looking for work or because of illness in the family, cannot file an appeal

[ 177 Pa. Super. Page 262]

    nunc pro tunc. Turner Unemployment Compensation Case, 163 Pa. Superior Ct. 168, 60 A.2d 583 (1948); McDonnell Unemployment Compensation Case, 173 Pa. Superior Ct. 355, 98 A.2d 648 (1953); Tuttle Unemployment Compensation Case, supra.

On the other hand where a person is unintentionally misled by an officer who is authorized to act in the premises, courts will relieve an innocent party of injury consequent on such misleading act where it is possible to do so. Tuttle Unemployment Compensation Case, supra.

Section 505 of the Unemployment Compensation Act, supra, 43 PS § 825, provides inter alia as follows:

"The manner in which appeals shall be taken, the reports thereon required from the department, the claimant and employers, and the conduct of hearings and appeals, shall be in accordance with rules of procedure prescribed by the board whether or not such rules conform to common law ...


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