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GARY STEIN v. COMMONWEALTH PENNSYLVANIA (11/23/77)

decided: November 23, 1977.

GARY STEIN, 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 Gary Stein, No. B-133425.

COUNSEL

David Kraut, for petitioner.

Susan Shinkman, Assistant Attorney General, with her Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

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

Author: Crumlish

[ 32 Pa. Commw. Page 489]

Gary Stein (Claimant) asks this Court to reverse a decision of the Unemployment Compensation Board of Review (Board) which dismissed his appeal pursuant to Section 501(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).

Claimant was last employed in the Photography Department of the Community College of Philadelphia. In April of 1975, he applied for unemployment compensation benefits. The Bureau of Employment Security (Bureau) on June 9, 1975, denied benefits relying upon Section 402(b)(1) of the Act, 43 P.S. § 802(b)(1). On September 3, 1975, Claimant appealed this determination. The record indicates that the referee assigned to the appeal sent Claimant a letter dated September 9, 1975, informing him that his appeal was untimely. This letter also noted that Claimant could request a hearing on the sole issue of whether the appeal was timely. Claimant requested and was granted a hearing on the issue of timeliness. Upon dismissal of his appeal by the referee, Claimant appealed to the Board which, in turn, upheld the referee's ruling. Though not disputing that his appeal was filed beyond the time limit set forth in Section 501(e) of the Act, Claimant nevertheless argues that his appeal should be allowed, contending that he was unintentionally misled by an official of the Bureau.

Section 501(e) of the Act, at the time relevant to the chronological framework outlined above, read, in part, as follows:

(e) Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished

[ 32 Pa. Commw. Page 490]

    by the department under section five hundred one (a), (c) and (d), within ten (10) calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.*fn1

As we said in Unemployment Compensation Board of Review v. Duffy, 23 Pa. Commonwealth Ct. 7, 10, 349 A.2d 925, 927 (1976):

The requirements of Section 501(e) of the Unemployment Compensation Law are mandatory in the absence of fraud or manifestly wrongful or negligent ...


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