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ALVIN E. PRESS v. COMMONWEALTH PENNSYLVANIA (01/24/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 24, 1989.

ALVIN E. PRESS, 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 Alvin E. Press, No. B-264840.

COUNSEL

Alvin E. Press, for himself.

Gary L. Kelley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 123 Pa. Commw. Page 79]

Petitioner, Alvin E. Press, seeks review of an order of the Unemployment Compensation Board of Review (Board), which denied his petition for reimbursement of

[ 123 Pa. Commw. Page 80]

    attorney's fees pursuant to the Act of December 13, 1982 (Costs Act), P.L. 1127, 71 P.S. §§ 2031-2035. We affirm.

Petitioner was employed as a production electrician by Transit America. His last day of work was January 30, 1987. He filed an application for Trade Act Benefits for adversely affected workers with the Office of Employment Security (OES). The OES issued a determination denying benefits to petitioner. The petitioner appealed to the referee, and the referee reversed the OES's decision and granted benefits to petitioner. The OES appealed from this decision. The petitioner filed a petition for reimbursement of attorney's fees with the referee. The Board issued a decision and order affirming the referee, and thus granting benefits to petitioner, but denying attorney's fees to petitioner pursuant to section 3 of the Costs Act, 71 P.S. § 2033. The petitioner now seeks review of the Board's order which denied reimbursement of attorney's fees to him.*fn1

In its decision, the Board determined that the Costs Act is inapplicable because the Costs Act addresses adversary adjudications initiated by a Commonwealth agency. The Board held that the OES did not initiate an adversary adjudication; instead it undertook fact finding and issued a determination only after the petitioner filed an application for benefits. Since the OES's determination

[ 123 Pa. Commw. Page 81]

    was issued after the petitioner filed an application and initiated the request, the Board found the Costs Act inapplicable.

Section 3(a) of the Costs Act, 71 P.S. § 2033(a), provides:

(a) Except as otherwise provided or prohibited by law, a Commonwealth agency that initiates an adversary adjudication shall award to a prevailing party, other than the Commonwealth, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer finds that the position of the agency, as a party to the proceeding, was substantially justified or that special circumstances made an award unjust.

The petitioner contends that by filing his application for unemployment compensation benefits, he merely initiated a claim. He contends that the OES "initiated an adversary adjudication" when it denied his application for unemployment benefits. We do not agree with petitioner's argument that such denial by the OES initiates an adversary adjudication, and thus renders the costs incurred recompensable. "Such an interpretation belies the express language and stated purpose of the Act." Hardy et al. v. Pennsylvania Department of Environmental Resources, 101 Pa. Commonwealth Ct. 1, 515 A.2d 356 (1986).

In Hardy, this Court stated:

We are, of course, constrained to construe statutory language according to its common and approved usage. 1 Pa. C.S. § 1903(a). Webster's Ninth New Collegiate Dictionary (1983) defines initiate as 'to cause or facilitate the beginning of.' We fail to see how the Department 'caused or facilitated the beginning of' this adjudication. We believe that petitioners began this action in their

[ 123 Pa. Commw. Page 82]

    private request for revision directed at the Department.

Id. at 6, 515 A.2d at 358.

Accordingly, we affirm the order of the Board.

Order

Now, January 24, 1989, the order of the Unemployment Compensation Board of Review, Decision No. B-264840, is affirmed.

Disposition

Affirmed.


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