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MCKINNEY UNEMPLOYMENT COMPENSATION CASE. (09/16/59)

September 16, 1959

MCKINNEY UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 249, Oct. T., 1959, by claimant, from decision of Unemployment Compensation Board of Review, No. B-49693-B, in re claim of James McKinney. Decision affirmed.

COUNSEL

Frederick Weitzman, with him Techner, Rubin & Shapiro, for appellant.

Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Gunther

[ 190 Pa. Super. Page 471]

OPINION BY GUNTHER, J.

The sole question raised in this unemployment case is whether the claimant has shown extenuating circumstances arising to more than a mere hardship could warrant the extension of time to file an appeal from the decision of the referee nunc pro tunc.

Claimant, James McKinney, was last employed by the United Packing Company, Inc., in Philadelphia, Pa., and his last day of work was September 17, 1958. The referee, after hearing testimony on the merits of the case ruled, on October 21, 1958, that the claimant was discharged for willful misconduct connected with his work because he reported back to work after lunch under the influence of intoxicants. This decision was mailed to claimant on October 27, 1958 at his last known address. The last day to file an appeal from this decision was November 6, 1958. Claimant filed his appeal on November 7, 1958, contending that he was late in filing his appeal due to illness. The Board of Review, without passing on the merits of the claim, dismissed the appeal on December 2, 1958 as not timely under the provision of section 502 of the Unemployment Compensation Law, 43 P.S. 822. Within ten days of

[ 190 Pa. Super. Page 472]

    issuing this order, claimant requested the Board of Review to reconsider its dismissal order on the ground that there were extenuating circumstances for failure to file on time. The Board of Review on January 19, 1959 vacated its previous decision and ordered the case remanded for a hearing and taking further testimony relative to the timeliness of claimant's appeal from the decision of the referee. A copy of this order was served upon claimant.

The hearing officer scheduled a hearing on this order for January 29, 1959, at which time claimant appeared with counsel and testimony was received on the issue of failure to file the appeal within the ten day period as provided by law. However, the notice sent out for this hearing erroneously designated the issue as to whether the claimant's unemployment was due to discharge or temporary suspension from work for willful misconduct instead of designating the issue whether claimant filed a valid appeal. Nevertheless testimony was taken on this latter issue and claimant was permitted to offer testimony to the effect that he was hospitalized on October 31, 1958, as a result of an accident and that by reason of a blow on the head, he was detained in the hospital until November 4, 1958.

The board, after reviewing this testimony, concluded that its order of December 2, 1958, was correct and reinstated that order on February 18, 1959. From this order, claimant has filed this appeal.

Claimant contends here that the notice for the hearing on January 29, 1959 designating the purpose of the hearing erroneously was prejudicial to him because he came prepared to offer testimony on the merits rather than on the timeliness of his appeal and that he was unable, therefore, to present documentary evidence to corroborate his ...


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