Appeal from the Order of the Unemployment Compensation Board of Review in the case of David Ward, No. B-236181-B.
Mark S. Shiffman, Baskin and Steingut, P.C., for petitioner.
Samuel H. Lewis, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
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The Colonial Taxi and Paratransit Service, Inc., the employer, appeals from an order of the Unemployment Compensation Board of Review which adopted a referee's
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decision to grant benefits to David Ward, the claimant. We affirm.
Preliminarily, the employer claims procedural error in the board's proceedings. The board initially reversed the referee's decision and denied benefits to the claimant. Upon the claimant's request for reconsideration, the board vacated its earlier order. In the board's final order, in which only two of the three board members participated, the members could not reach a consensus and, consequently, adopted the referee's decision as the board's final order.
The employer contends that the board should have reinstated its original decision and order because the vacation of that decision was necessarily subject to the issuance of a new decision by the board. The employer insists that, because the board's final order does not constitute an action either affirming, reversing or remanding the referee's decision, the board's earlier order reversing the referee must stand.
The issue is whether the referee's decision stands as the final order of the board if the board vacates, upon reconsideration of an appeal, its earlier order reversing the referee and subsequently declines to affirm or reverse the referee's decision.
Section 502 of the Unemployment Compensation Law,*fn1 43 P.S. § 822, states that the referee's decision shall be deemed the board's final order pending subsequent board action:
The parties and the department shall be duly notified of the referee's decision and the reasons therefor, which shall be deemed the final decision of the board, unless an appeal is filed ...