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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. NELSON DEVICTORIA (03/23/76)

decided: March 23, 1976.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
NELSON DEVICTORIA, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Nelson DeVictoria, No. B-122144-B.

COUNSEL

Andrew F. Erba, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 24 Pa. Commw. Page 145]

This is a claimant's appeal from the decision of the Unemployment Compensation Appeal Board dismissing his appeal from a Bureau of Employment Security determination of ineligibility. The Board dismissed the appeal on the ground that it was untimely filed. We affirm.

The appellant, Nelson DeVictoria, was discharged from his employment on or about October 2, 1973. He filed an application for unemployment compensation benefits with the Bureau of Employment Security on November 4, 1973. On November 30, 1973, a "Notice of Determination" was mailed to the appellant informing him that he was disqualified from receiving benefits because his discharge was for wilful misconduct. On December 21, 1973, the appellant filed an appeal from that determination. His appeal was denied as untimely by the Bureau and Board. On appeal to this Court the case was by agreement of the parties remanded to the Board for the taking of additional testimony. The Board appointed a referee who took evidence which was simply repetitive of that produced at the first hearing. On June 2, 1975, the Board again found as a fact that the appellant had not been misinformed or misled regarding his right of appeal and concluded as a matter of law the appeal failed for lack of timeliness under 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).

Section 501(e) provides in pertinent part:

"Unless the claimant . . . files an appeal with the board, from the determination contained in any

[ 24 Pa. Commw. Page 146]

    notice . . . within ten (10) calendar days after such notice . . . was mailed to his last known post office address . . . such determination of the department, with respect to the particular facts set forth in such notice, shall be final. . . ."

The cases hold that the statutory time limit for filing an appeal is mandatory in the absence of fraud or manifestly wrongful or negligent conduct by the administrative agency. See Unemployment Compensation Board of Review v. Duffy, 23 Pa. Commonwealth Ct. 7, 349 A.2d 925 (1976); Unemployment Compensation Board of Review v. Dunofsky, 20 Pa. Commonwealth Ct. 545, 342 A.2d 148 (1975); and Kitchell v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 149, 305 A.2d 728 (1973) and cases cited therein.

The appellant testified that he had appeared at the Bureau office on November 30, 1973, to sign up for his checks, that an employe of the Bureau told him to return on December 21, 1973, and that relying on this advice he did ...


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