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PHILIP KEAR v. COMMONWEALTH PENNSYLVANIA (02/08/79)

decided: February 8, 1979.

PHILIP KEAR, 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 Philip Kear, No. B-137370.

COUNSEL

Alan Kear, for appellant.

Daniel R. Schuckers, Assistant Attorney General, with him Bernadette A. Duncan, Assistant Attorney General, 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. President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge DiSalle. Dissenting Opinion by Judge Crumlish, Jr. Judge Craig joins in this dissent.

Author: Disalle

[ 40 Pa. Commw. Page 347]

This is an appeal by Philip Kear (Claimant) from an order of the Unemployment Compensation Board of Review (Board) disallowing his appeal from a referee's denial of benefits. The case was originally heard by a three-judge panel and was subsequently reargued before the Court en Banc.

For purposes of this appeal, Claimant last worked on December 31, 1971. The following month, he went to the local office of the Bureau of Employment Security (Bureau) to apply for benefits. Although he was in fact eligible, a Bureau employee told him he was not, and refused to allow him to fill out an application

Claimant learned of the mistake in May of 1976, and immediately requested the benefits he should have received in January, 1972. The referee found that although the Bureau erroneously refused to accept the application, Regulation 65.41(c)(5)*fn1 prohibits the predating

[ 40 Pa. Commw. Page 348]

    of a claim for benefits more than 52 weeks after the refusal of a local office to accept an application -- where such refusal results from error or mistake -- and this rendered Claimant ineligible. The Board affirmed.

We agree with Claimant that the 52 week rule would not bar recovery if the Bureau's action amounted to something more than mere error or mistake: that is, gross negligence or wilful and wanton misrepresentation amounting to fraud. Here, however, there is nothing in the record to indicate that the Bureau employee's misconduct was anything other than the giving of wrong advice. Given the complexity of the issue of Claimant's eligibility in 1972,*fn2 and given the fact that Claimant, after being denied an application, simply "assumed" he was ineligible and made no further demand for one, we cannot agree that the employee committed anything other than an error.

We must also disagree with Claimant's characterization of his 1976 application for benefits as merely a request to have his 1972 claim honored, as opposed to an attempt to predate his claim. The fact of the matter ...


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