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EDWARD L. MILESKI v. COMMONWEALTH PENNSYLVANIA (11/10/77)

decided: November 10, 1977.

EDWARD L. MILESKI, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Edward L. Mileski, No. B-132028.

COUNSEL

James Victor Voss, with him Neely and Voss, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 32 Pa. Commw. Page 335]

Edward L. Mileski (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) reversing a referee's grant of benefits. Since the record in this case fails to indicate that notice of the employer's appeal to the Board was properly forwarded to the claimant, we vacate the Board's

[ 32 Pa. Commw. Page 336]

    order and remand to allow the claimant an opportunity to be heard by the Board.

The claimant was discharged by Computerm Corporation (employer) in January 1975 for allegedly falsifying his expense account.*fn1 The Bureau of Employment Security (Bureau) denied claimant's application for unemployment benefits. Claimant appealed, and a hearing was held before a referee on November 12, 1975, at which claimant appeared without counsel. By order dated November 21, 1975, the referee reversed the Bureau's decision and granted benefits to the claimant. By letter to the local office of the Bureau, the employer properly filed a petition for appeal to the Board. Under the Board's rules of procedure, the local bureau office is required to furnish notice of the filing of such a petition to the Board and to all parties to the proceedings. 34 Pa. Code § 101.103. The claimant contends that such notice was never forwarded to him. By order of June 10, 1976, the Board, without hearing argument or taking additional testimony, reversed the referee and held that the claimant was guilty of willful misconduct and not entitled to benefits. Upon receiving a copy of this order, which claimant contends was the first notice he received that an appeal had been taken, claimant secured counsel and filed a timely appeal to this Court.

[ 32 Pa. Commw. Page 337]

It is well established that, when the Board allows an appeal, all parties shall have the opportunity to be heard on the issues. See Davidson Unemployment Compensation Case, 189 Pa. Superior Ct. 543, 151 A.2d 870 (1959) (hereinafter Davidson II); Davidson Page 337} Unemployment Compensation Case, 186 Pa. Superior Ct. 290, 142 A.2d 459 (1958) (hereinafter Davidson I). Since the Board is the ultimate fact-finder in unemployment compensation cases, with the power to affirm, modify, or reverse the referee's findings of fact or conclusions of law, see Unemployment Compensation Board of Review v. Leonhart, 24 Pa. Commonwealth Ct. 196, 353 A.2d 925 (1976), it is particularly important that all parties have an opportunity to be heard before that body. Such a right is even more important to a claimant who was not represented by counsel before the referee. Indeed, a failure to accord an opportunity to be heard to the parties to an appeal would raise serious procedural due process questions. Cf. Bengal v. State Board of Pharmacy, 2 Pa. Commonwealth Ct. 347, 279 A.2d 374 (1971) (failure to accord an opportunity to file brief with fact-finding board violative of due process).

Thus, Section 504 of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 824, provides, in relevant part:

When any claim pending before a referee is removed or transferred to the board, the board shall afford the parties and the department ...


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