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JOSE ORBERA v. COMMONWEALTH PENNSYLVANIA (08/30/85)

decided: August 30, 1985.

JOSE ORBERA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Jose Orbera, No. B-215732.

COUNSEL

Frederic Chardon, for petitioner.

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

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri. Judge Williams, Jr. did not participate in the decision in this case. Judge Barry did not participate in the decision in this case. Judge Doyle dissents.

Author: Barbieri

[ 91 Pa. Commw. Page 439]

Jose Orbera (Claimant) appeals here an order of the Unemployment Compensation Board of Review (Board). That order affirmed the decision of a referee which found him ineligible for extended unemployment compensation benefits under Section 403-A(b)(2) of the Unemployment Compensation Law (Law).*fn1

[ 91 Pa. Commw. Page 440]

Claimant's last day of work was April 30, 1982 and he applied for unemployment compensation benefits effective May 2, 1982. The Office of Employment Security (OES) found Claimant eligible for benefits and he subsequently received benefits for twenty-six weeks. As Claimant approached the end of his regular benefits, he was counseled by the OES through an interpreter as Claimant does not speak English,*fn2 as to the eligibility requirements for extended benefits. Specifically, the OES informed Claimant that to qualify for extended benefits, he would have to provide tangible evidence that he has engaged in a systematic and sustained effort to obtain work. The OES further informed Claimant that the OES had interpreted the phrase "systematic and sustained effort" to require extended benefit claimants to make five job contacts on five different days, one of which must be a personal contact and a job application must be filed. For the week in question, Claimant made only three job contacts, all over the telephone, and all through a friend, Louis Cruz. There were no personal contacts. The OES determined that Claimant had failed to engage in a systematic and sustained effort to find work and thus was ineligible for extended benefits. Claimant appealed that OES determination

[ 91 Pa. Commw. Page 441]

    to a referee who held a hearing on December 21, 1982. On January 4, 1983, the referee issued a decision which upheld the OES determination and Claimant appealed to the Board. On March 9, 1983, the Board affirmed the referee's decision and denied benefits.

In this appeal, Claimant raises two assignments of error: (1) that the Board erred as a matter of law when it determined that he did not engage in a systematic and sustained effort to obtain employment, and (2) that publication of the requirements in the OES Bulletin was not a proper promulgation as required by the Commonwealth Documents Law*fn3 and may not be used to deny him extended benefits under Section 403-A(b)(2) of the Law.

We shall first examine whether Claimant may be denied benefits pursuant to an OES Bulletin interpreting a systematic and sustained work search effort as five job contacts in five days. Our analysis begins with Lopata v. Unemployment Compensation Board of Review, 507 Pa. 570, 493 A.2d 657 (1985) wherein the Pennsylvania Supreme Court ruled that an Unemployment Compensation Bulletin requiring that a "credit week", in the event of an overlap in that week between two calendar quarters, be assigned to that calendar quarter in which at least four days fell, was an invalid regulation as it ...


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