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CONNIE M. OSBORNE v. COMMONWEALTH PENNSYLVANIA (03/18/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 18, 1982.

CONNIE M. OSBORNE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Connie M. Osborne, No. B-180666.

COUNSEL

Jeffrey Ledbetter, with him Charles A. Bierbach, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Mencer, Blatt and Doyle, sitting at a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 65 Pa. Commw. Page 379]

This is an appeal by Connie M. Osborne (Claimant) from a decision of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law (Law)*fn1 and the establishment of a non-fault, recoupable overpayment under Section 804(b).*fn2 We affirm.

The facts herein are undisputed. Claimant filed for, and received, unemployment compensation benefits for the weeks ending August 11, 1979, through October 13, 1979. Because of inadequate earnings on two subsequent jobs,*fn3 Claimant's chargeable employer for the purpose of receipt of these benefits was Empire Kosher Poultry Company (Empire) whose employ she had left on July 9, 1979. On October 23, 1979, the Bureau (now Office) of Employment Security issued a determination denying benefits to Claimant. Claimant disputed this denial and a referee's hearing was held. Following the hearing, the referee issued a decision upholding

[ 65 Pa. Commw. Page 380]

    the benefits denial on the grounds that Claimant had voluntarily quit her job at Empire without cause of a necessitous and compelling nature. Since Claimant had not misinformed or misled the compensation authorities in order to receive the benefits paid up until the October 23, 1979, denial, the referee also determined that the establishment of a non-fault recoupable overpayment was proper. Claimant appealed and the Board, without taking any new evidence, issued a decision affirming the referee.

Before this Court, Claimant does not challenge the findings of fact below or the holding that she voluntarily quit her employment with Empire. Instead, she asserts that it was improper for the Board to use the circumstances of her separation from employment with Empire as the basis for denying benefits in the benefits year in question because Empire failed to file a timely appeal of the initial benefits payments. We disagree.

Section 501(e) of the Law*fn4 provides that

[u]nless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.

Section 509 of the Law*fn5 states that

[ 65 Pa. Commw. Page 381]

Any decision made by the department or any referee or the board shall not be subject to collateral attack as to any application claim or claims covered thereby or otherwise be disturbed, unless appealed from.

Subject to appeal proceedings and judicial review, any right, fact or matter in issue which was directly passed upon or necessarily involved in any decision of a referee or the board or the Court and which has become final shall be conclusive for all purposes of this act and shall not be subject to collateral attack as among all affected parties who had notice of such decision. . . .

These appeal provisions are mandatory. Thus, where an employer has received notice of a determination that a former employee is eligible for unemployment compensation and fails to take a timely appeal therefrom, that determination is conclusive as to that employer for the benefits year in question and also is not subject to a collateral attack. McConnell v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 516, 409 A.2d 1196 (1980); Oravec Unemployment Compensation Case, 171 Pa. Superior Ct. 491, 90 A.2d 269 (1952). Only where the employer proves that it was deprived of its "right to appeal by fraud or its equivalent, i.e. wrongful or negligent conduct by the administrative authorities" will a late appeal from a determination of eligibility be considered effective. Effort Foundry, Inc. v. Unemployment Compensation Board of Review, 52 Pa. Commonwealth Ct. 356, 361, 415 A.2d 1263, 1265 (1980).

Accordingly, if a determination of eligibility had provided the basis for the payment of benefits to Claimant commencing in August, 1979, this Court would be bound to agree with Claimant that the circumstances of her separation from Empire could not

[ 65 Pa. Commw. Page 382]

    form the basis for a determination of ineligibility some four months later. A careful review of the record, however, does not reveal any such determination, nor evidence that one was made. Rather, it is evident that, despite the fact that Claimant was receiving benefits, there was no formal determination of eligibility until that issued October 23, 1979, denying benefits. As that determination was the initial formal determination herein, we must hold that it was proper for the referee to consider the circumstances of Claimant's termination of employment with Empire in determining eligibility for the benefits year in question and enter the following

Order

Now, March 18, 1982, the decision and order of the Unemployment Compensation Board of Review, No. B-180666, dated February 8, 1980, is hereby affirmed.

Disposition

Affirmed.


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