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JAMES P. CAMERON v. COMMONWEALTH PENNSYLVANIA (06/09/81)

decided: June 9, 1981.

JAMES P. CAMERON, SR., 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 James P. Cameron, Sr., No. B-177549.

COUNSEL

Richard C. Osterhout, for petitioner.

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

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

Author: Palladino

[ 59 Pa. Commw. Page 568]

Petitioner appeals an order of the Unemployment Compensation Board of Review (Board) which dismissed Petitioner's appeal as being untimely filed. We affirm the Board's order.

On October 27, 1978, the Bureau of Employment Security (Bureau) issued a financial determination denying benefits to Petitioner. Petitioner filed a timely appeal, and a hearing was conducted before a referee who affirmed the Bureau's determination. On or about December 18, 1978, a copy of the referee's decision was seasonably mailed to Petitioner. Pursuant to Section 502 of the Law,*fn1 43 P.S. ยง 822, Petitioner then had fifteen days within which to appeal the referee's decision. Petitioner did not attempt to appeal the referee's decision until August 3, 1979, several months after the statutory appeal period had expired.

In this appeal Petitioner does not allege that his appeal was delayed by any misleading, fraudulent, or negligent actions of the unemployment compensation authorities. Rather, Petitioner asserts that upon receipt of his appeal dated August 3, 1979, the Board remanded the case for further hearings before the referee and, according to Petitioner, thereby impliedly waived the issue of timeliness of the appeal.

This Court has repeatedly and consistently held that the statutory time limit established for the filing

[ 59 Pa. Commw. Page 569]

    of appeals is mandatory. Shimko v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 578, 422 A.2d 726 (1980); Unemployment Compensation Board of Review v. Digiacomo, 24 Pa. Commonwealth Ct. 326, 355 A.2d 604 (1976). The appeal period may be extended beyond the statutory limit only where, through acts constituting fraud or its equivalent, the compensation authorities have deprived a claimant of the right to appeal. Shimko, supra; Effort Foundry, Inc. v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 356, 415 A.2d 1263 (1980); Digiacomo, supra.

Moreover, the heavy burden of proving fraudulent conduct by the authorities rests upon the claimant who attempts to justify a late appeal. Leight v. Unemployment Compensation Board of Review, 49 Pa. Commonwealth Ct. 312, 410 A.2d 1307 (1980). Without proof of fraud or its equivalent there is a presumption of the regularity of the acts of public officials such as the administrative authorities. Fuentes v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 546, 413 A.2d 449 (1980). In the instant case Petitioner admitted before the referee, and still acknowledges, that he failed to appeal within the statutory period solely because under the existing case law he was unlikely to succeed on the merits of his case. Petitioner does not allege any wrongdoing by the compensation authorities.

However, Petitioner erroneously contends that the Board's remand to the referee for consideration of Petitioner's appeal dated August 3, 1979, reopened Petitioner's case and operated as a waiver of the issue of timeliness of the appeal. Petitioner's contention ...


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