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BRANDIN CANNADY v. COMMONWEALTH PENNSYLVANIA (02/11/85)

decided: February 11, 1985.

BRANDIN CANNADY, 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 Brandin Cannady, No. B-226922.

COUNSEL

Terry L. Fromson, for petitioner.

Richard F. Faux, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judge Colins and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Blatt

[ 87 Pa. Commw. Page 458]

Brandin Cannady (claimant) appeals here an order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's decision to dismiss his appeal under 34 Pa. Code § 101.51*fn1 when neither party appeared at the scheduled hearing.

The claimant alleges that he did not receive notice of the hearing which was held on November 21, 1983 until November 23, 1983 at which time he notified his counsel who instructed him to go to the referee's office and request that the hearing be reopened. His oral request for reopening was followed by a written request dated November 28, 1983 which explained why the claimant had failed to appear at the hearing and further stated that the claimant had been experiencing trouble with his mail delivery. On November 29, 1983, the claimant received the referee's decision postmarked November 25, 1983 dismissing his appeal.

[ 87 Pa. Commw. Page 459]

Having received no reply from the referee regarding his written request to reopen the hearing, the claimant appealed the referee's decision to the Board, again seeking to have the hearing reopened. The Board summarily affirmed the referee's decision and the present appeal ensued.

The only issue raised by the claimant is whether or not the Board abused its discretion when it denied his request to reopen the hearing without explanation. He argues that his request was made in a timely fashion and for proper cause. We may, of course, review any legal questions properly raised by the claimant. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

The record reveals that neither the referee nor the Board ever issued a decision regarding the claimant's request to reopen the hearing. The Board argues, however, that it did rule implicitly on the claimant's request to reopen the hearing by affirming the referee's decision to dismiss the appeal.

The claimant notes that 34 Pa. Code § 101.24(c) ...


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