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ANITA HOFFMAN v. COMMONWEALTH PENNSYLVANIA (02/23/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 23, 1978.

ANITA HOFFMAN, 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 Anita Hoffman, No. B-133089.

COUNSEL

Ronald Smolow, with him Marcel L. Groen, and Goren, Von Rosenstiel, Smolow & Burkett, 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. and Wilkinson, Jr., sitting as a panel of two. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 34 Pa. Commw. Page 21]

Anita Hoffman (Claimant/Appellant) appeals a decision of the Unemployment Compensation Board of Review (Board/Appellee) which found that her appeal from a decision of the referee was untimely.

Upon her discharge from employment by the Muscular Dystrophy Association, Claimant applied for unemployment compensation benefits. The Bureau of Employment Security disallowed the benefits and, on

[ 34 Pa. Commw. Page 22]

    appeal, the referee sustained the disallowance, deciding that Claimant's discharge was a voluntary quit under Section 402(b)(1) of the Unemployment Compensation Law (Law).*fn1 The referee's decision was published and mailed on February 26, 1976, and received by Claimant on February 28. Claimant then appealed to the Board by letter dated March 8, 1976, but postmarked March 9, 1976, eleven days after the mailing of the referee's decision.*fn2

Section 502 of the Law, 43 P.S. § 822, states in relevant part:

The parties and the department shall be duly notified of the referee's decision, and the reasons therefor, which shall be deemed the final decision of the Board, unless within ten days after the date of such decision the Board acts on its own motion, or upon application, permits any of the parties or the department to institute a further appeal before the Board.*fn3 (Emphasis added.)

Section 505 of the Law, 43 P.S. § 825, gives the Board authorization to promulgate rules governing the manner in which appeals are to be filed. Pursuant to this mandate, the Board provided that to be timely, an appeal must be mailed within ten days following

[ 34 Pa. Commw. Page 23]

    the posting of the referee's decision, and the mailing date is determined by the postmark date. See Section 101.82(d) of the Rules of Unemployment Compensation Board of Review, 34 Pa. Code, § 101.82.

Claimant argues that the operative act initiated by the Board's regulations is "mailing" and argues that the Board's postmark rule is unreasonable. We disagree. The postmark is the easiest and most reliable source from which one can determine the precise timing of the "mailing."

Absent deprival by the Board of Claimant's right to appeal via fraud, negligence or wrongful conduct, she may not excuse her tardiness. These issues were not raised and are not considered herein.

Accordingly, we

Order

And Now, this 23rd day of February, 1978, the decision of the Unemployment Compensation Board of Review is affirmed.

Disposition

Affirmed.


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