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ROBERT L. KILLIAN v. COMMONWEALTH PENNSYLVANIA (09/27/79)

decided: September 27, 1979.

ROBERT L. KILLIAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of an unemployment compensation referee in case of In Re: Claim of Robert L. Killian, Appeal No. 79-5-B-50.

COUNSEL

Emily J. Leader and Laurence E. Norton, II, for petitioner.

Daniel R. Schuckers, Assistant Attorney General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by President Judge Bowman.

Author: Bowman

[ 46 Pa. Commw. Page 220]

Respondent, Unemployment Compensation Board of Review (Board), has moved to quash this petition for review because petitioner failed to first exhaust his administrative remedies by seeking Board review of a referee's determination denying petitioner's claim for benefits. The Board correctly points out that this is self-evident from the petition for review itself which discloses that on March 29, 1979, the referee disallowed benefits which "order became final on April 13, 1979", sets forth a statement of reasons why the order of the referee is erroneous, and prays that we "set aside the order of the Referee for the Unemployment Compensation Board of Review."

Lurking behind this last quoted language is a series of statutory enactments which produce two distinct but related issues focusing upon the jurisdiction of this Court to entertain this petition for review: May an aggrieved claimant appeal from an adverse determination by a referee directly to this Court on the theory that since neither contesting party appealed to the Board from the referee determination it "shall be deemed the final decision of the [B]oard"? Section 502, Unemployment Compensation Law (UCL), Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. § 822. If so, from what date is the thirty day time for appeal measured?

Prior to enactment of the Judiciary Act Repealer Act (JARA), Act of April 28, 1978, P.L. 202, 42 P.S.

[ 46 Pa. Commw. Page 221]

§ 20002 et seq., the statutory scheme for administrative and judicial review of referee determinations was prescribed in several sections of UCL.

Section 502 of UCL then read in pertinent part as follows:

Where an appeal from the determination or revised determination, as the case may be, of the department is taken, a referee shall, after affording the parties and the department reasonable opportunity for a fair hearing, affirm, modify, or reverse such findings of fact and the determination or revised determination, as the case may be, of the department as to him shall appear just and proper. 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 [B]oard, unless within fifteen days after the date of such ...


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