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MARIA RENE FERRARO v. COMMONWEALTH PENNSYLVANIA (08/31/83)

decided: August 31, 1983.

MARIA RENE FERRARO, 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 Maria Rene Ferraro, No. B-201075.

COUNSEL

Warren J. Borish, Meranze, Katz, Spear & Wilderman, for petitioner.

Charles D. Donahue, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Blatt, Doyle and Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 76 Pa. Commw. Page 637]

This is an appeal from an order of the Unemployment Compensation Board of Review (Board) which denied as untimely an appeal by Maria Rene Ferraro (Claimant) of a denial of benefits.

On December 31, 1980 the Referee found that Claimant had left her employment due to cause of a necessitous and compelling nature, therefore making

[ 76 Pa. Commw. Page 638]

    her eligible for benefits during the weeks between October 18 through November 29, 1980. Subsequently, however, an investigation conducted by the OES revealed that the Claimant had been a full-time student during the period when she had collected benefits and that she had also been employed during the same period. At a hearing held on December 31, 1980, Claimant testified to the contrary and thereby perjured herself. On July 23, 1981, notice was mailed to Claimant of an interview scheduled for July 28, 1981 to discuss these facts regarding her inelegibility for the weeks in question. Claimant did not attend that meeting and on July 29, 1981 the OES determined her ineligible. The OES determined that during the time for which she filed and received benefits she was, in fact, a full-time student at Temple University. They concluded, therefore, that she was ineligible to receive benefits under Section 401(d)(1) of the Unemployment Compensation Law (Law)*fn1 because she was not able and available for full-time employment. In addition, the OES found that she had been employed during part of that time and had not reported her earnings when applying for benefits, making her additionally ineligible under Section 4(u) of the law, 43 P.S. ยง 753(u). Because Claimant had withheld such information, a fault recoupment of $672.00 was ordered for the weeks when Claimant was ineligible. On the Notice of Determination sent to the Claimant on July 29, 1981, the last day to file an appeal was listed as August 13, 1981. This date represented the end of the prescribed time period in which an appeal could have been filed, i.e. fifteen days. Claimant states however that she did not receive this notice of the OES action until after the time period for appeal had elapsed

[ 76 Pa. Commw. Page 639]

    because she had moved from her residence on July 1, and did not notify the postal authorities until about two weeks later. The notice, however, was not returned by the postal authorities as undeliverable.

On August 21, 1981 Claimant informed the OES by letter of her desire for an appeal. Her letter was postmarked August 25, twenty-eight days after the determination by the OES, and twelve days after the time period for appeal had expired. On September 23, 1981, the Referee dismissed Claimant's petition for appeal concluding that it was not filed within the allowed period of fifteen days from the date of the OES's determination. The Board affirmed the Referee's ...


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