Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas C. Banks, No. B-128667.
Richard A. Katz, with him Alan N. Linder, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Kramer.
[ 29 Pa. Commw. Page 308]
This is an appeal by Thomas C. Banks (Banks) from an order of the Unemployment Compensation Board of Review (Board) dated November 19, 1975. The order dismisses Banks' appeal from a referee's decision denying him benefits. The basis for the dismissal was that the appeal was not filed within the mandatory 10-day period from the date of the referee's decision as provided under Section 502 of the Unemployment Compensation Law, Act of December 5, 1936,
[ 29 Pa. Commw. Page 309]
Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822. We affirm.
The record reveals that Banks was discharged from his employment on December 19, 1975. His application for unemployment benefits was denied by the Bureau of Employment Security (Bureau) on February 26, 1975. Banks appealed timely from this decision and received a hearing before a referee, which resulted in an affirmance of the Bureau's denial of benefits. This decision by the referee was dated and mailed on April 21, 1975. Banks did not appeal from this decision until May 29, 1975, well beyond the prescribed statutory period of 10 days.*fn1
As to this untimely appeal, the Board ordered a remand hearing on the question of timeliness to provide Banks the opportunity to explain why the limitation period should be extended. It should be noted that to succeed in receiving an extension of time in which to appeal, it is the claimant's burden to present
[ 29 Pa. Commw. Page 310]
adequate excuse for his delay. Unemployment Compensation Board of Review v. Hart, 22 Pa. Commonwealth Ct. 225, 348 A.2d 497 (1975). The only adequate excuse in such instances, however, is fraud or its equivalent, i.e., the wrongful or negligent conduct of the administrative authorities. Kitchell v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 149, 305 A.2d 728 (1973).
In attempting to sustain his heavy burden, Banks, represented by counsel, offered testimony that he never received actual notice of the referee's decision and that his appeal was filed ...