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JOSEPH C. CORBACIO v. COMMONWEALTH PENNSYLVANIA (10/25/83)

decided: October 25, 1983.

JOSEPH C. CORBACIO, 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 Joseph C. Corbacio, No. B-210449.

COUNSEL

Stephen R. Krone, for petitioner.

Michael D. Alsher, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Craig, Barry and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 78 Pa. Commw. Page 71]

Joseph C. Corbacio (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision denying benefits under Section 3 of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 752 (public policy declaration that benefits will be granted to persons unemployed through no fault of their own).

The relevant facts, as found by the referee and affirmed by the Board, are as follows. The claimant was employed as a delivery driver and warehouseman for AGM Inc. (employer). He was cited for several off-the-job speeding violations which, after hearing and appeals, resulted in the revocation of his operator's

[ 78 Pa. Commw. Page 72]

    license. A requirement of his employment as a delivery driver was, of course, that he possess a valid Pennsylvania operator's license. The employer had no other position in its organizational structure in which to place the claimant, and because of his loss of a license to drive, involuntarily terminated his employment. The Office of Employment Security (OES) denied the claimant's application for benefits under Section 402(e) of the Law, 43 P.S. § 802(e) (wilful misconduct), however, on appeal to the referee, benefits were denied under Section 3 of the Law, 43 P.S. § 752. After the Board affirmed, the claimant filed the instant appeal.

Pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, we must affirm the Board's adjudication unless a party's constitutional rights were violated or there was an error of law, or necessary findings of fact are not supported by substantial evidence.

The claimant argues first that the referee acted improperly in basing his decision on a legal theory not relied upon by the OES. In support of this argument, he cites to several sections of the administrative regulations, 34 Pa. Code § 101.87*fn1 and 34 Pa. Code § 101.107,*fn2 which appear to limit the issues which may

[ 78 Pa. Commw. Page 73]

    be considered on appeal. And, inasmuch as the referee decided the case under Section 3, as opposed to the decision of the OES's based upon Section ...


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