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JOHNSON UNEMPLOYMENT COMPENSATION CASE. (09/12/63)

September 12, 1963

JOHNSON UNEMPLOYMENT COMPENSATION CASE.


Appeal, No. 16, Oct. T., 1963, by claimant, from decision of Unemployment Compensation Board of Review, No. B-72137-B, in re claim of Sylvester Johnson, Jr. Decision affirmed.

COUNSEL

Eugene G. Kitko, with him William T. Davis, for appellant.

Sydney Reuben, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for Unemployment Compensation Board of Review, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 201 Pa. Super. Page 489]

OPINION BY WRIGHT, J.

Sylvester Johnson, Jr. was last employed as a laborer by the American Vitrified Products Company in Sommerville, New Jersey. His final day of work was December 2, 1961. His application for benefits was disallowed by the Board of Review on the ground that he had voluntarily terminated his employment without cause of a necessitous and compelling nature, and was disqualified under the provisions of § 402(b) (1) of the Unemployment Compensation Law. Act of December

[ 201 Pa. Super. Page 4905]

, 1936, P.L. (1937) 2897, 402(b)(1), 43 P.S. 802(b)(1). This appeal followed.

The first question raised is one of procedure. The Bureau of Employment Security determined that claimant's reasons for terminating his employment did not constitute good cause. The Referee reversed the Bureau. In a decision dated June 23, 1962, the Board affirmed the Referee. Under date of July 31, 1962, on its own motion, the Board vacated and withdrew its decision and ordered reconsideration. On October 9, 1962, the Board filed its decision reversing the Referee. It is contended on claimant's behalf that the Board may not "vacate and reverse their own order, on their own motion, without reason, and without giving the claimant an opportunity to be heard". We considered and rejected an identical contention in Sable Unemployment Compensation Case, 197 Pa. Superior Ct. 177, 177 A.2d 115. The following excerpt from our opinion in the Sable case is here pertinent (citations omitted):

"Although our attention has not been called to any case directly apposite, there are certain well-established general principles. Procedural due process does not require a hearing at any particular point, or at more than one point, in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective... We have held that it is not even necessary that claimant appear at the hearing where a signed statement is submitted in lieu of his testimony... In the total absence of any demonstration of arbitrary conduct, the obvious conclusion is that, in the Board's judgment, its decision of May 10, 1961 was erroneous. An administrative body may correct errors on its own motion, without the intervention of either party... Such type of action by an administrative agency having jurisdiction may be set aside only where there is a manifest and flagrant abuse of discretion... The function of the Superior Court is

[ 201 Pa. Super. Page 491]

    not to substitute its judgment for that of the administrative body, but merely to determine whether there is error of law, lack of ...


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