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RUSSELL D. COLWELL v. COMMONWEALTH PENNSYLVANIA (04/17/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 17, 1979.

RUSSELL D. COLWELL, 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 Russell E. Colwell, No. B-156046.

COUNSEL

John Eichlin, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.

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

Author: Wilkinson

[ 42 Pa. Commw. Page 59]

Petitioner's application for unemployment compensation benefits was denied on December 30, 1977. On January 3, 1978 petitioner received this notice of the disallowance informing him that he had 15 days to appeal. Petitioner did not file his appeal until February 1, 1978. After a hearing restricted to the issue of the timeliness of the appeal, the referee dismissed the appeal as being untimely. This decision of the referee was affirmed by the Unemployment Compensation Board of Review (Board). We must affirm.

The question before the Court, as stated in petitioner's brief is:

Whether or not the Appellant's [petitioner's] untimely appeal can be excused by any fraudulent or manifested wrongful or negligent conduct by the Bureau or by any unintentionally misleading actions or statements by an official who is authorized to act for the Bureau?

The wrongful or negligent conduct relied upon by petitioner is the fact that on December 17, 1977 he spoke with a representative of the Bureau of Employment Security (Bureau) to inquire if it would be appropriate for him to attend school while unemployed. The reply was in the affirmative. On January 3, 1978 when he received the notice of the disallowance he was about to leave for school, now saying he did not have time to file the appeal before he left for school. By no stretch of the imagination could petitioner have believed that the employe of the Bureau's

[ 42 Pa. Commw. Page 60]

    approval on December 17, 1977 of his attending school, constituted approval of not filing a timely appeal when he was notified some two weeks later that his application had been disallowed.

As in Strawley v. Unemployment Compensation Board of Review, 25 Pa. Commonwealth Ct. 34, 358 A.2d 145 (1976) where Judge Mencer set forth the stringent requirements of the timeliness of the filing of the appeal in a case where it was received only one day late, we have no choice but to affirm this correct decision of the Board.

Accordingly, we will enter the following

Order

And Now, April 17, 1979, the order of the Unemployment Compensation Board of Review, dated April 7, 1978, Decision No. B-156046, dismissing the petitioner's appeal as untimely is affirmed.

Disposition

Affirmed.

19790417

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