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MICHAEL J. PHARES v. COMMONWEALTH PENNSYLVANIA (10/17/84)

decided: October 17, 1984.

MICHAEL J. PHARES, 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 Michael J. Phares, No. B-208154.

COUNSEL

Edith Benson, for petitioner.

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

Judges Craig, Palladino and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 85 Pa. Commw. Page 476]

Michael J. Phares, Claimant, appeals here from an order of the Unemployment Compensation Board of Review (Board), affirming a referee's dismissal as untimely of Claimant's appeal from the denial of benefits to him by the Office of Employment Security (OES), in that the appeal failed to meet the statutory time limit of Section 501(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 821(e).

Claimant was employed by the United States Air Force as a Missile Maintenance Specialist from June 15, 1980 until July 10, 1981. On July 10, 1981, he was honorably discharged from the Air Force for drug abuse.

On July 12, 1981, Claimant applied for unemployment compensation benefits as authorized under the Omnibus Budget Reconciliation Act of 1981, Section 2405, 5 U.S.C. Section 8521 (1982). On August 26, 1981, the Office of Employment Security denied his application. Claimant testified before the referee that an OES employee informed him at a special interview that the OES had denied benefits because he was eligible for reenlistment. Prior to Claimant's discharge, however, his sergeant had told him that he would not be allowed to re-enlist, due to the circumstances of his discharge. Although aware of his right to appeal, Claimant failed to file an appeal by September 10, 1981, the last day on which a timely appeal could be filed. Section 501(e) of the Law. Claimant testified before the referee that he appealed after the statutory time limit because he believed the OES representative's assertion that he could re-enlist. Several weeks

[ 85 Pa. Commw. Page 477]

    later, when he attempted to re-enlist, he was informed that he could not do so for at least two years. On February 4, 1982, the claimant appealed the OES determination.

The referee, in dismissing the appeal for untimeliness found that Claimant was "neither misinformed nor in any way misled regarding the right to appeal." The Board upheld the referee's decision. Claimant argues that the negligent or wrongful conduct of the Office of Employment Security representative, in allegedly stating that Claimant could re-enlist immediately, deprived him of his right to appeal.

Section 501(e) of the Law requires the filing of an appeal within fifteen calendar days after an adverse decision is personally delivered or mailed to a claimant's last known address. It is well settled that the statutory time period for appeals under Section 501(a) is mandatory, except where the administrative authorities have engaged in fraud or its equivalent, i.e., wrongful or negligent conduct. Effort Foundry v. Commonwealth Unemployment Compensation Board, 52 Pa. Commonwealth Ct. 356, 415 A.2d 1263 (1980); Shimko v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 578, 422 A.2d 726 (1980); Berry v. Unemployment Compensation Board of Review, 488 Pa. 180, 411 A.2d 1198 (1980).

In Pickering v. Unemployment Compensation Board of Review, 80 Pa. Commonwealth Ct. 315, 471 A.2d 182 (1984), this Court applied the words "fraud or its equivalent" to a set of facts quite similar to those presently before this Court. In Pickering, the OES deducted the amount of the claimant's disability pension, $155.00 per week, from his unemployment compensation benefits. On December 7, 1981, the ...


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