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decided: October 18, 1989.




Sharon M. Dietrich, Philadelphia, for petitioner.

Clifford F. Blaze, Deputy Chief Counsel, John E. Herzog, Asst. Counsel, Harrisburg, for respondent.

Frayda Kamber, Deputy Chief Counsel, Harrisburg, for intervenor, Dept. of Labor and Industry.

Doyle and McGinley, JJ., and Narick, Senior Judge.

Author: Doyle

[ 129 Pa. Commw. Page 317]

Edward Simmons (Claimant) appeals an order of the Unemployment Compensation Board of Review (Board) affirming a referee's determination to deny unemployment compensation benefits pursuant to Section 402(e) of the

[ 129 Pa. Commw. Page 318]

Unemployment Compensation Law (Law) (willful misconduct).*fn1 We affirm.

Claimant was working for Nupra Industries Corporation (Employer) as a pumper when he was discharged in December 1987 for negligently allowing two tanks containing different types of waste oil to drain into a tank wagon which overflowed. The two oils could not be separated and thus caused damage in excess of $12,000 to Employer. Claimant had worked for Employer for seventeen years, but in the last six years he had received five warnings, including three suspensions, for similar conduct. The parties agree that Claimant's conduct was negligent and not intentional. The Office of Employment Security (OES) granted Claimant benefits on the basis that Employer failed to produce any evidence before the OES and failed to participate in the proceedings before the OES. Employer appealed and the referee reversed. Claimant then appealed to the Board which affirmed the referee's decision. Claimant's appeal to this Court followed.

Claimant's appeal raises two issues for review: (1) because Employer failed to participate at all before the OES, it is prohibited from filing an appeal from that determination, and (2) Claimant's conduct did not rise to the level of willful misconduct.

With regard to the first issue, Claimant contends that only an employer who receives notice required to be furnished by the OES pursuant to Section 501,*fn2 43 P.S.

[ 129 Pa. Commw. Page 319]

§ 821, can appeal an OES determination. Employer here failed to furnish evidence to the OES and because Employer did not participate before the OES, Claimant posits, it was thus not entitled to notice under Section 501 and therefore not permitted to appeal. We do not agree with Claimant's logic. Section 501 does not purport to limit who may file an appeal challenging a claimant's eligibility for benefits; rather, that statute pertains to the time limitation for an appeal.

We note that the request for information by the OES is an informal one. In a case such as this, the OES gathers information through its "Summary of Interview" form. Based upon this and claimant's application for benefits, the OES makes its determination to grant or deny benefits. This process does not include a hearing nor is it adversarial in nature. It is not until the hearing before the referee that a claimant and an employer have a full and fair opportunity to present testimony and to have evidence entered on the record. We will not, therefore, preclude an employer from exercising its right to present evidence and to adduce testimony at a referee's hearing simply because it does not offer information to the OES, nor will we deny an employer, or a claimant, the right to appeal an OES determination to the referee and ultimately to the Board based on nonparticipation before the OES.

Claimant further argues that because Employer refused to provide information to the OES, he was deprived of notice of Employer's defense. Claimant cites several cases for the proposition that a denial of benefits is unjustified where a claimant is unprepared to defend against an issue through no fault of his own because of a lack of notice. See, e.g., Bilsing v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 199, 382 A.2d 1279 (1978), wherein our Court said:

[ 129 Pa. Commw. Page 320]

[I]f the [OES] in notifying a claimant of his ineligibility for reasons of wilful misconduct describes the offending misconduct, fairness and [34 Pa.Code § 101.87] require that the evidence adduced at the referee's hearing be limited to the kind of conduct described in the notice.

Id., 34 Pa. Commonwealth Ct. at 201, 382 A.2d at 1281. In that case, the OES sent notice to the claimant that he was ineligible for compensation because of willful misconduct stemming from his absenteeism and lateness. The referee affirmed the denial of benefits based on absenteeism and lateness as well as on Claimant's negligent abandonment of a clothes dryer at work. On appeal, our court held that fairness and the provisions of 34 Pa.Code § 101.87 require that the evidence adduced at the referee's hearing be limited to the type of conduct described in the notice given Claimant by the OES. We thus set aside the Board's order and remanded for a further hearing.

In Lecker v. Unemployment Compensation Board of Review, 71 Pa. Commonwealth Ct. 266, 455 A.2d 234 (1983), we held similarly that a referee on appeal must consider only the charges set forth in the OES's notice. In that case, the OES denied benefits to the claimant based on the claimant's failure to follow her employer's instructions with regard to work assignments, despite prior warnings. The referee considered evidence at the hearing relating to the claimant's failure to follow the employer's instructions as well as several warnings by the employer about leaving work early. We held that it was incorrect for a referee to deny unemployment compensation for reasons not mentioned in the OES notice. We vacated the Board's order and remanded.

Again, in Diaz v. Unemployment Compensation Board of Review, 95 Pa. Commonwealth Ct. 137, 504 A.2d 973 (1986), the referee failed to make necessary findings regarding the issue stated in the OES notice and we ...

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