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HENRY W. PERRY v. COMMONWEALTH PENNSYLVANIA (05/18/83)

decided: May 18, 1983.

HENRY W. PERRY, 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 Henry W. Perry, No. B-203816.

COUNSEL

James J. Auchinleck, Jr., of counsel: McCoy & Auchinleck, P.C.

Charles G Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Blatt. Concurring and Dissenting Opinion by Judge MacPhail.

Author: Blatt

[ 74 Pa. Commw. Page 390]

Henry W. Perry (claimant) appeals the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits on the basis that he had voluntarily quit work without cause of a necessitous and compelling nature. Section 402(b)(1) of the Unemployment Compensation Law*fn1 (Act).

Prior to reaching a discussion on the merits of the case, we will first address the Board's motion to quash the claimant's petition for review, pursuant to Section 510.1(b) of the Act, 43 P.S. ยง 830.1(b) which provides that "[e]very appeal to the Commonwealth Court shall be taken within thirty (30) days after the decision or order of the board is issued. . . ."

The claimant, while admitting that the appeal was filed after the 30-day limit, requests the allowance of an appeal nunc pro tunc, and alleges that mechanical problems with his counsel's law clerk's automobile,*fn2 while en route to the post office, precluded a timely filing. He argues that, because the appeal was then mailed at the next opportunity, and the three-day delay did not result in any prejudice to the Board, his appeal should now be allowed.

[ 74 Pa. Commw. Page 391]

We find the case of Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) to be dispositive on this issue. In Bass, our Supreme Court held that, where the attorney's non-negligent failure to file a timely appeal is promptly corrected and does not result in prejudice, the petitioner should not lose his day in court. While it is true that the time for taking an appeal will not be extended as a matter of grace or mere indulgence, the failure here was non-negligent, and any prejudice resulting from the three-day delay in the appeal process would necessarily be minimal. Bass. We will therefore deny the Board's motion to quash the appeal and grant the claimant's request for allowance of an appeal nunc pro tunc.*fn3

As to the merits of the case, the claimant had been employed until July 17, 1981 by the Robertson American Corporation (employer) as a sprayer. He was then accused of selling controlled substances on company premises, and the employer contends that, upon being confronted with this accusation, the claimant resigned, choosing not to utilize the union grievance procedure. The claimant contends, however, that he was discharged by the employer and is entitled to benefits.

A claimant alleging that he did not quit, but instead was discharged, bears the burden of proving that contention. Miller v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 410, ...


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