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DONNA D. LIBONATE v. COMMONWEALTH PENNSYLVANIA (03/11/81)

decided: March 11, 1981.

DONNA D. LIBONATE, 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 Donna D. Libonate, No. B-175185.

COUNSEL

Donna D. Libonate, petitioner, for herself.

Karen Durkin, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

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

Author: Blatt

[ 57 Pa. Commw. Page 423]

Donna D. Libonate (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which disallowed her appeal from a referee's denial of unemployment benefits.

The claimant was last employed on a part-time basis as a bookkeeper by Lauderbach and Company which went out of business in March of 1979. When she then filed an application for benefits, she advised the Office of Employment Security that she was available only for part-time work because of her domestic responsibilities, and she refused a referral to a full-time bookkeeping position on May 17, 1979. She was then notified that her benefits would be disallowed under Section 402(a) of the Unemployment Compensation Law (Law)*fn1 because of her failure to accept suitable work. She appealed this determination, but, after a hearing on June 28, 1979, the referee affirmed the disallowance on the exclusive grounds that she had failed to accept suitable work. On her appeal to the Board, which took no additional evidence, the Board held that she was not ineligible under Section 402(a) of the Law because her desire to care for her child was good cause for the refusal of the job referral, but it held instead that she was ineligible under Section 401(d) of the Law, 43 P.S. § 801(d), because she had so limited her availability as to remove herself from the labor market. The claimant contends here that the Board violated its own regulations by relying on Section 401(d) of the

[ 57 Pa. Commw. Page 424]

Law, for that issue was not ruled upon by the referee and she did not have an adequate opportunity to present evidence concerning that issue.

The issues which the Board may consider in an appeal from a referee's decision are limited by the following Department of Labor and Industry regulation:

(b) The Board shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case, with the approval of the parties, may be determined though not expressly ruled upon or indicated in the notice of hearing, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby and are supported by the record. (Emphasis added.)

34 Pa. Code § 101.107(b). The "notice of hearing" refers to the notice required to be sent to the parties pursuant to 34 Pa. Code § 101.105*fn2 when, upon appeal to the Board from a referee's decision, the Board determines that a further hearing is necessary. We believe, therefore, that the Board may consider the following issues in an appeal from a referee's decision: 1) those issues expressly ruled upon by the referee; 2) those issues delineated in the ...


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