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CAROL A. ORTIZ v. COMMONWEALTH PENNSYLVANIA (09/27/84)

decided: September 27, 1984.

CAROL A. ORTIZ, 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 Carol A. Ortiz, No. B-215265.

COUNSEL

Edward F. Chacker, with him, T. J. Scully, Gay & Chacker, P.C., for petitioner.

Charles Hasson, Deputy Chief Counsel, for respondent.

Barry Simon, with him, Nicholas N. Price, Schnader, Harrison, Segal & Lewis, for intervenor, Spring Garden Health Center.

Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 328]

Carol Ortiz, Claimant, appeals here an order of the Unemployment Compensation Board of Review

[ 85 Pa. Commw. Page 329]

(Board) which affirmed a referee's dismissal for nonappearance the claimant's appeal from a determination by the Office of Employment Security (OES) denying her benefits for willful misconduct under Section 402(e) of the Unemployment Compensation Law.*fn1 She seeks a remand for a referee's hearing on the merits.

Claimant timely appealed the referee's dismissal to the Board requesting remand for a hearing on the merits contending that (1) she had good cause for her and her lawyer's late arrival at the referee's hearing, the lateness being minimal, fixed by her at less than 10 minutes, and (2) the referee was without authority to dismiss her appeal solely for her failing to arrive at the hearing on time and without disposition on the merits.*fn2 The Board affirmed the dismissal order, and Claimant now reasserts here basically the same contentions presented by her to the Board. We will remand for relief on both contentions.

Before the OES the employer contended that Claimant was discharged for tardiness while she claimed that her discharge was because she had filed a grievance. The OES denied benefits on the ground of willful misconduct because of tardiness. On the appeal, as noted, the referee failed to reach this issue, stating:

     there being no appearance by the appellant claimant at the scheduled Referee hearing on the captioned case, pursuant to the Rules of ...


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