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ANTHONY A. LIZZI v. COMMONWEALTH PENNSYLVANIA (01/28/75)

decided: January 28, 1975.

ANTHONY A. LIZZI, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT, AND ALUMINUM COMPANY OF AMERICA, INTERVENING RESPONDENT



Original jurisdiction in case of Anthony A. Lizzi v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review and Aluminum Company of America, Intervening Respondent.

COUNSEL

Paul H. Titus, with him Jon Hogue, and Kaufman & Harris, for petitioner.

Sydney Reuben, Assistant Attorney General, for respondent.

Donald C. Winson, with him Dale E. Williams, Frederick J. Rerko, and Eckert, Seamans, Cherin & Mellott, for intervening respondent.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 17 Pa. Commw. Page 166]

This matter comes before this Court on a petition for writ of mandamus to have this Court order the Unemployment Compensation Board of Review "to entertain the petition for allowance of appeals filed by petitioner . . . or, in the alternative, hold a hearing to determine whether or not petitioner and the others similarly situated failed to file timely appeals as a result of fraud or misrepresentation."

Petitioner and some 100 others similarly situated were separated from their employment on March 5, 1970. Petitioner had been employed with the Company, intervening respondent, from which he was then separated, for some 35 years. At the time of the separation, he and the others similarly situated signed a statement that they had voluntarily retired and would begin receiving retirement benefits on April 1, 1971.

Petitioner immediately applied for unemployment compensation. The Bureau of Employment Security, on March 19, 1971, notified petitioner that he would receive benefits for the period March 12, 1971, to April 1, 1971,

[ 17 Pa. Commw. Page 167]

    but would receive no benefits thereafter because his voluntary retirement would be effective at that time. The March 19, 1971 notice contained appropriate appeal instructions. Specifically, it stated that "this determination becomes final unless an appeal is filed within 10 days. Your appeal period ends 10 days from the date shown in the upper right hand corner of the face of this form." (Emphasis in original.) The date on the upper right hand corner was March 19, 1971.

The appeal time provided in Section 501(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 821(e), expired on March 29, 1971.

On April 13, 1971, well after the appeal time had expired, petitioner filed what he expressly declared was a late appeal. After a hearing on June 17, 1971, the issue of which was the timeliness of the appeal, on June 30, 1971, the appeal was disallowed by the referee because of lateness. The referee expressly found that the petitioner had not ...


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