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SOL SACKS v. COMMONWEALTH PENNSYLVANIA (05/07/81)

decided: May 7, 1981.

SOL SACKS, 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 Sol M. Sacks, No. B-172802-B.

COUNSEL

Andrew F. Erba, for petitioner.

William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.

Judges Mencer, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Macphail

[ 59 Pa. Commw. Page 209]

Sol Sacks (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee and found Claimant ineligible for unemployment compensation benefits under the provisions of Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(e).

[ 59 Pa. Commw. Page 210]

Claimant had been employed as a cutter of men's suits by Pincus Brothers-Maxwell (Employer) for eighteen years when, on February 19, 1979, he was discharged after being cited for improperly cutting a sleeve. Claimant applied for and was granted unemployment compensation benefits by the Bureau (now Office) of Employment Security. The Employer appealed and, after a hearing, a referee reversed the Bureau's decision and disallowed benefits finding that Claimant's deteriorating work performance constituted willful misconduct under Section 402(e) of the Law. On appeal, the Board granted Claimant's request for a remand hearing.

After the remand hearing, which was held on August 19, 1979, Claimant's counsel requested a transcribed copy of the record of the testimony. The transcript was forwarded to counsel on October 2, 1979 with directions that oral argument be requested by October 12, 1979 if such argument was desired. Oral argument was timely requested in writing on October 10 and Claimant's counsel was notified that he would be contacted if oral argument was granted by the Board and that if it was not Claimant would receive the Board's decision in due course. On October 16, 1979, Claimant's counsel requested notice as to whether oral argument would be granted so that, if denied, a written brief could be submitted. The Board issued its decision on October 17, 1979 without notifying Claimant as to its decision with respect to oral argument.*fn1

[ 59 Pa. Commw. Page 211]

Claimant has raised several challenges to the Board's decision, however, the sole issue which we will consider at this time is whether the Claimant was denied due process of law when the Board issued its adjudication without notifying Claimant that his request for oral argument had been denied and without allowing time for Claimant to file a written brief in lieu of oral argument. We conclude that Claimant was denied due process of law.

The law is clear that, "All parties shall be afforded opportunity to submit briefs prior to adjudication by a Commonwealth agency. Oral argument upon substantial issues may be heard by the agency." Section 506 of the Administrative Agency Law, 2 Pa. C.S. § 506. We have held that the failure of an administrative agency to afford a party the opportunity to file a brief prior to adjudication is a denial of the statutory right provided by the Administrative Agency Law, supra, as well as a denial of due process of law. Moyer v. Unemployment Compensation Board of Review, 36 Pa. Commonwealth Ct. 553, 388 A.2d 772 (1978) and Bengal v. State ...


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