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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (07/15/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 15, 1986.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, OFFICE OF EMPLOYMENT SECURITY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

Appeals from the Orders of the Unemployment Compensation Board of Review, in cases of In Re: Claim of Timothy E. Sweesy, No. B-229041-B, and In Re: Claim of Robert A. Stanley, No. B-229042-B.

COUNSEL

Herbert W. Hoffman, Deputy Chief Counsel, with him, Francine Ostrovsky, Assistant Chief Counsel, for petitioner.

No appearance for respondent.

Jane F. Hepting, with her, Frank J. Piatek, for intervenors, Timothy E. Sweesy and Robert A. Stanley.

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

Author: Blatt

[ 99 Pa. Commw. Page 7]

The Department of Labor and Industry, Office of Employment Security (OES) petitions for review of two decisions of the Unemployment Compensation Board of Review (Board), which have been consolidated for review. In these decisions, the Board granted an additional period of benefits for job training to Timothy E. Sweesy and Robert A. Stanley (claimants) under the

[ 99 Pa. Commw. Page 8]

    provisions of Section 233(b)*fn1 of the Trade Act of 1974,*fn2 as amended, 19 U.S.C.A. § 2293(b).

OES denied these benefits to the claimants concluding that they had failed to satisfy the 210 day time limit of Section 233(b).*fn3 Each OES determination was affirmed by a referee, but the Board reversed both referees' decisions, reasoning that, inasmuch as each claimant experienced his last separation less than 210 days before his application for training approval and allowances, they had complied with the Section 233(b) requirements and, therefore, were entitled to the additional weeks of benefits.

[ 99 Pa. Commw. Page 9]

Contending that the Board had misconstrued Section 233(b), OES requested reconsideration, which the Board granted over the claimants' objections. The Board then vacated its original adjudications and heard legal argument from OES and counsel for the claimants. Thereafter, on July 18, 1984, the Board issued two new decisions, again granting the additional weeks of benefits. These later Board decisions, however, were based on an analysis of Section 233(b) which differed from the Board's earlier analysis. After finding that both claimants had had temporary but definite periods of unemployment prior to being laid off,*fn4 the Board concluded that such periods of unemployment were not separations for the purposes of Section 233(b) and that, therefore, the 210 day filing deadline began only at the time of the final lay-offs.

Because the Board so altered its adjudications on reconsideration without having given prior notice to the parties, OES contends here that the Board committed reversible error.*fn5 See Grcich v. Unemployment Compensation Board of Review, 64 Pa. Commonwealth Ct. 428, 430 n.2, 440 A.2d 681, 682 n.2 (1982).*fn6 OES

[ 99 Pa. Commw. Page 10]

    argues that the Board's actions amount to a substitution of new issues on reconsideration, a practice which, absent the taking of new evidence or a non-prejudicial agreement by the parties, we have expressly held to be violative of the Board's regulations concerning appeals to the Board from a referee's decision. See 34 Pa. Code § 101.107; Libonate v. Unemployment Compensation Board of Review, 57 Pa. Commonwealth Ct. 422, 426 A.2d 247 (1981). However, while it is true that the Board's regulations do not specifically address the permissibility of introducing new issues without notice at the Board reconsideration level, and that we have explicitly disapproved such a practice as an abuse of the Board's discretion, Grcich, we do not believe that the Board here injected a new issue into this case in place of that which was involved when the case was originally before that body. The controlling question on reconsideration was the same as it had been before, i.e., whether or not the claimants had satisfied the 210 day rule of Section 233(b). That the Board reached the same result on reconsideration through a different interpretation of the statute, does not amount to the introduction of new issues. See Crawl v. Pennsylvania Housing Finance Agency, 98 Pa. Commonwealth Ct. 431, 511 A.2d 924 (1986).

We believe, and emphasize, therefore, that the Board's application, on reconsideration, of a new interpretation of the same undisputed facts and law, does not constitute reversible error.

We will affirm the Board's grant of additional weeks of TRA benefits to the claimants.

[ 99 Pa. Commw. Page 11]

Order in 2408 C.D. 1984

And Now, this 15th day of July, 1986, the order of the Unemployment Compensation Board of Review in the Claim of Timothy E. Sweesy, Board Decision No. B-229041-B, dated July 18, 1984, is affirmed.

Order in 2409 C.D. 1984

And Now, this 15th day of July, 1986, the order of the Unemployment Compensation Board of Review in the Claim of Robert A. Stanley, Board Decision No. B-229042-B, dated July 18, 1984, is affirmed.

Disposition

Decisions affirmed.


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