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EFFORT FOUNDRY v. COMMONWEALTH PENNSYLVANIA (06/26/80)

decided: June 26, 1980.

EFFORT FOUNDRY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW AND CLYDE H. ALTEMOSE, JR., RESPONDENTS



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Clyde Altemose, Jr., No. B-156360-B.

COUNSEL

Karl K. LaBarr, Jr., for petitioner.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Mencer.

Author: Macphail

[ 52 Pa. Commw. Page 358]

Petitioner Effort Foundry, Inc. (Employer) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) reversing the order of the referee and granting benefits to Clyde H. Altemose, Jr. (Claimant). The basis for the Board's order was its conclusion that because Employer did not appeal from an initial grant of benefits to Claimant, the Bureau (now Office) of Employment Security (Bureau) was without jurisdiction to issue a revised determination denying benefits to Claimant. The only issue before us is whether, on the facts of this case, the failure of Employer to appeal from the initial grant of benefits to Claimant was justified and, accordingly, whether the Bureau's redetermination was proper. We hold that it was. We reverse the order of the Board and remand this case for further proceedings on the issue of Claimant's eligibility for benefits.

The facts of this case are crucial to our determination. Claimant was last employed by Employer as a grinder at a rate of $5.00 per hour. His last day of work was October 21, 1977. Claimant applied for unemployment compensation benefits and notice of his application was sent to Employer at "Effort Foundry, Effort, Pa. 18353," the address supplied to the Bureau by Claimant. In fact, the correct zip code for

[ 52 Pa. Commw. Page 359]

Effort, Pa. is 18330. Employer had registered with the Bureau using the address of its office, P.O. Box 3167, Butztown, Pa. 18017. Employer's letterhead stationery contained both addresses, the former denoted as "Plant" and the latter as "Office." The "Plant" or Effort address was subordinate to the "Office" or Butztown address on the letterhead.

It is undisputed that Employer received notice of Claimant's application for benefits, completed the employer's statement thereon, and returned the statement to the Bureau. Employer did not correct the incorrect zip code. On November 28, 1977, the Bureau granted unemployment compensation benefits to Claimant. The Bureau's records indicate that the Notice of Determination approving Claimant's application was sent to Employer at "Effort Foundry, Effort, Pa. 18353." The Notice of Determination stated that Employer had until December 13, 1977 to file an appeal from the determination. No appeal was filed.

Employer asserts that it never received the Notice of Determination and that it did not know that benefits had been granted to Claimant until January, 1978 when it received a Notice of Financial Determination Charged from the Bureau's Harrisburg office. Upon receipt of the latter notice, Employer's President contacted the local Bureau office and informed the personnel there that he had never received a copy of the initial determination. A copy of the November 28 notice was sent to him and, on January 23, 1978, Employer protested in writing the Bureau's decision.

Following the receipt of Employer's protest, the Bureau revised its initial determination and denied unemployment compensation benefits to Claimant on the basis that he voluntarily terminated his employment with Employer without cause of a necessitous and compelling nature. See Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December

[ 52 Pa. Commw. Page 3605]

, 1936, Second Ex. Sess., P.L. [1937] 2897, as amended, 43 P.S. § 802(b)(1). In a second determination on the same date, the Bureau held Claimant liable for a non-fault overpayment in the amount of $1,322.00. See Section 804(b) of the Law, 43 P.S. § 874(b). Claimant filed a timely appeal from those decisions to the Board. The Board concluded that the Bureau had no jurisdiction to reconsider its initial determination and, accordingly, reversed the referee's decision on both the Section 402(b)(1) and the Section 804(b) issues. Employer then appealed to this Court. Upon stipulation by counsel for Employer ...


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