decided: July 29, 1982.
MURPHY GOODMAN, PETITIONER
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 Murphy Goodman, No. B-188056.
James E. Culp, for petitioner.
Charles Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
President Judge Crumlish and Judges Rogers and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.
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The Pennsylvania Unemployment Compensation Board of Review (Board) denied benefits to Murphy Goodman. We vacate and remand.
While studying law at the University of Pittsburgh, Goodman was employed by that institution for a two-year
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period as an academic advisor.*fn1 After completing his legal studies, Goodman's appointment as an advisor was renewed for one year, during which time he enrolled in evening graduate courses. Using the third year of the triennial as his base period, he applied for benefits when his appointment was not extended beyond the final year since his academic involvement with the University had terminated.
The Bureau of Employment Security determined, without further explanation, that Goodman was "financially ineligible" for benefits. On appeal to the referee, the claimant was informed that the following issues*fn2 would be considered:
(1) Whether the claimant was able to work and available for suitable work under Section 401(d) of the Unemployment Compensation Law (Law);*fn3 and
(2) Whether the claimant was paid the qualifying amount of wages in subject employment under Section 404 of the Law.*fn4
The referee, however, concluded that Goodman, while serving his third year as an academic advisor, was a student enrolled and regularly attending classes
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at the University*fn5 and, thus, was ineligible for benefits under Section 4(1)(4)(10)(B),*fn6 which provides that service performed in the employ of a university is not deemed "employment" for unemployment compensation purposes if such service is performed by a student "who is enrolled and regularly attending classes at such . . . university. . . ." The Board affirmed, without comment, the referee.
The initial burden of proving a right to benefits rests with the claimant. Wincek v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 201, 204, 439 A.2d 890, 891 (1982). Goodman failed to prevail below, thereby limiting our scope of review to questions of law and, absent fraud, to whether the findings are consistent with each other and can be sustained without a capricious disregard of competent evidence. Roman v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 44, 47, 413 A.2d 775, 776 (1980).
Goodman first argues that, having been notified that the appeals hearing would be limited to determinations of the "availability for suitable work" and the "qualifying amount of wages" issues, the referee erred by basing a benefits denial on Section 4(1)(4)(10)(B). We agree that the referee on appeal must consider only those charges delineated in the hearing notice. See Hanover Concrete Co. v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 463, 465, 402 A.2d 720, 721 (1979). Unemployment compensation regulations*fn7 require
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that evidence adduced and determinations made at the referee's hearing be limited to the legal issues ruled on by the Bureau. Corressel v. Unemployment Compensation Board of Review, 35 Pa. Commonwealth Ct. 437, 439, 385 A.2d 615, 616 (1978). To allow a determination of a different legal issue which the claimant is unprepared to defend or explain (absent, of course, both parties' consent) is fundamentally unfair and, as such, will not be allowed by this Court.
We vacate the Board's denial of benefits and remand to allow Goodman to defend the issue of his status under Section 4(1)(4)(10)(B).*fn8
Vacated and remanded.
The Unemployment Compensation Board of Review order No. B-80-6-H-825 dated September 25,
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, is hereby vacated and remanded for proceedings not inconsistent with this Opinion.
Judge Mencer did not participate in the decision in this case.
Order vacated. Case remanded.