decided: March 1, 1977.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA. MARSHALL FLEMING, APPELLANT
Appeal from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Marshall Fleming, No. B-129950.
Carrie Menkel-Meadow, 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., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 29 Pa. Commw. Page 100]
Claimant appeals from a decision of the Unemployment Compensation Board of Review (Board), which held claimant's appeal from the decision of a referee was not timely filed under Section 502 of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822. We affirm.
[ 29 Pa. Commw. Page 101]
The limitation period (10 days) placed on appeals is mandatory. However, there are instances in which the limitation period has been extended or waived. Gill Unemployment Compensation Case, 165 Pa. Superior Ct. 605, 70 A.2d 422 (1950). This has been the case where fraud is involved or a claimant has been unintentionally misled by compensation authorities. See Judge Blatt's discussion in Kitchell v. Unemployment Page 101} Compensation Board of Review, 9 Pa. Commonwealth Ct. 149, 305 A.2d 728 (1973). In either instance, claimants carry a heavy burden of proof. Id.
In the instant case, claimant concedes that his appeal was not timely filed, but contends that he was unintentionally misled by employees of the Bureau of Employment Security (Bureau). Claimant concedes that he received the decision of the referee and the accompanying instructions concerning filing further appeals. Upon receipt of the referee's decision claimant went to the Bureau. When he arrived he found that the employees were on strike and that there were pickets at the Bureau's office. Claimant, without asking anyone or attempting to enter the office, assumed that he could not enter the office to file his appeal. Claimant, however, did file his appeal after the strike ended, some seven days after the limitation period for his appeal.
Claimant would have us hold, contrary to the findings of the Board, that picketing the local Bureau office was an action which unintentionally misled him regarding his right of appeal.*fn1 This argument unfortunately neglects the fact that the instructions which accompanied the referee's decision, which claimant unequivocably states he received, specifically mentioned
[ 29 Pa. Commw. Page 102]
that the appeal could be filed by mail. When claimant wrongfully assumed that he could not enter the office,*fn2 the reasonable thing to do was not, as claimant argues, to wait until the strike ended, but rather to mail in his appeal. Even assuming arguendo, that claimant was unintentionally misled by the picketing of the Bureau office into believing he could not file his appeal in person, he held the key to his dilemma in his hands -- the instructions accompanying the referee's decision specifically stated he could file his appeal by mail.
Accordingly, we will enter the following
Now, March 1, 1977, the decision of the Unemployment Compensation Board of Review, dated February 11, 1976, Decision Number B-129950, is affirmed.