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MARTHA B. MIHELIC v. COMMONWEALTH PENNSYLVANIA (04/09/79)

decided: April 9, 1979.

MARTHA B. MIHELIC, 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 Martha B. Mihelic, No. B-131044-B.

COUNSEL

Lawrence F. Flick, for petitioner.

John T. Kupchinsky, Assistant Attorney General, for respondent.

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

Author: Rogers

[ 41 Pa. Commw. Page 547]

Martha B. Mihelic has appealed from an order of the Unemployment Compensation Board of Review which affirmed a referee's decision denying Ms. Mihelic's claim for benefits because she failed to file a timely appeal of the decision of the Bureau of Employment Security. We affirm the order of the Board.

Ms. Mihelic was discharged from her employment as a salesperson for Lord and Taylor on August 7, 1975. On August 10, 1975 she applied for unemployment compensation benefits. On August 19, 1975 the Bureau of Employment Security found Ms. Mihelic to be ineligible for benefits because she was discharged

[ 41 Pa. Commw. Page 548]

    for willful misconduct as provided by Section 402(e) of the Unemployment Compensation Law (the Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e). Ms. Mihelic says that she never received notice by mail of this determination and that she did not learn of the Bureau's decision until September 16, 1975, at which time she filed an appeal. After a hearing, a referee found that notice of the Bureau's determination had been mailed to Ms. Mihelic on August 19, 1975 and concluded that her appeal was untimely filed under Section 501(e) of the Law, 43 P.S. § 821(e), which at that time provided:

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 by the department under section five hundred and 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

The Board of Review affirmed the referee's decision and Ms. Mihelic appealed to this Court. On September 14, 1977, upon representations by counsel for the Board that the record was incomplete, we remanded the record to the Board for additional testimony and a new decision. The Board appointed a hearing officer, who conducted a second hearing at which Ms.

[ 41 Pa. Commw. Page 549]

Mihelic and representatives of the Bureau testified as to when notice of the Bureau's August 19, 1975 determination was given. Based on this testimony, the Board found that Ms. Mihelic's appeal was filed more than ten days after notice was mailed and again ...


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