Appeal, No. 228, April T., 1956, from decision of Unemployment Compensation Board of Review, dated May 7, 1956, No. B-41678, in re claim of Homer L. Keys. Decision vacated and record remanded.
James R. Hornick, with him Van der Voort, Royston, Robb & Leonard, for appellant.
Sydney Reuben, Special Deputy Attorney General, with him Herbert B. Cohen, Attorney General, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.
[ 183 Pa. Super. Page 165]
This is an appeal by claimant, Homer L. Keys, from a decision of the Unemployment Compensation Board of Review dismissing his appeal to the board from a referee's finding of ineligibility. The board held that his appeal, although taken within the ten-day statutory period, was not perfected within the ten-day period prescribed in the regulations of the board.
Claimant, who was sixty-nine years of age, had been employed as a chef for approximately three months at a weekly wage of $45 with meals provided. He left his employment on May 9, 1955. The testimony relating to the circumstances of the termination of his employment was conflicting. The employer claimed that he voluntarily quit; claimant contended that he was ill, that he needed time off to recover, and that he was discharged. The referee found that claimant voluntarily left his employment to journey to West Virginia to visit his wife, and concluded that this was not cause of a necessitous and compelling nature. Section 402(b) of the Unemployment Compensation Law, as amended, 43 PS § 802(b).
The decision of the referee disallowing benefits was issued on December 15, 1955. Claimant's attorney initiated an appeal by letter to the bureau, which was postmarked December 19, 1955. The pertinent parts read: "Please accept the within letter as my appeal in the above matter ... I desire further hearing with respect to the facts in this case. ... I take full exception to the decision of the referee ..." On December 20, 1955, the local office of the bureau sent a letter, addressed
[ 183 Pa. Super. Page 166]
to the law firm of claimant's attorney, enclosing form UC-46 and a notice that the completed appeal form must be filed or postmarked within ten days of the date of the bureau's letter. The appeal, however, was not perfected until February 13, 1956. On that date claimant's attorney wrote to the bureau, stating: "On December 19, in behalf of Homer L. Keys, I mailed a letter to your offices indicating a desire to appeal from the Referee's decision. On December 20, your offices mailed to this law firm a form UC-46, Petition for Appeal. It was not mailed to my attention nor did our inter-office procedure in regard to this suit refer it to me. Unfortunately, same was filed away until I was recently contacted by Mr. Homer L. Keys, the claimant, and informed that your office told him the time for appeal had lapsed and the decision of the Referee had become binding. I respectfully request that you consider the inadvertence of counsel as a valid ground for processing the attached petition for appeal as a timely one and set same down for hearing."
On March 16, 1956, the board issued an order remanding the case to the referee for a further hearing. The order did not state the purpose of the remand hearing except that it was to take "further testimony that is pertinent to the issue." At the remand hearing held on April 6, 1956, the referee received additional testimony on the merits of the claim; no testimony was taken relative to the failure to perfect the appeal within the prescribed time or relative to the alleged excuse.
On May 7, 1956, the board by its decision vacated the referee's findings and substituted its own which related solely to the timeliness of the appeal. On the basis of its findings, the board dismissed the appeal as being perfected too late. On May 10, ...