Kitchell v. Unemployment Compensation Bd. of Review

• Decision Date: 25 May 1973
• Citation: 305 A.2d 728,9 Pa.Cmwlth. 149
• Parties: Norman D. KITCHELL, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 728

305 A.2d 728

9 Pa.Cmwlth. 149

Norman D. KITCHELL, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee.

Commonwealth Court of Pennsylvania.

Argued May 11, 1973.

Decided May 25, 1973.

Steven G. Laver, Willow Grove, for appellant.

Sydney Reuben, Unemployment Compensation Board of Review, Harrisburg, for appellee.

Before KRAMER, MENCER, and BLATT, JJ.

OPINION

BLATT, Judge.

Norman C. Kitchell (claimant) was a resident of Riverside, New Jersey and was employed as a weigher by Lukens Steel Company, Coatesville, Pennsylvania. In February of 1971 the claimant lost his job and he thereafter sought Pennsylvania unemployment compensation benefits through the Interstate Claims System. Subsequently the Interstate Claims Office of the Pennsylvania Bureau of Employment Security found that the claimant had voluntarily left his employment without due cause and was therefore inteligible for benefits pursuant to Section 402(b)(1) of the Unemployment Compensation Law, Act of Dec. 5, 1936, Second Ex.Sess., P.L. (1937) 2897, 43 P.S. § 802(b)(1). The claimant appealed, a hearing was held before a referee, and on October 5, 1971 the decision of the referee affirming that of the Bureau of Employment Security was mailed to the claimant at his Riverside address. No appeal was filed with the Unemployment Compensation Board of Review (Board) until November 4, 1971, well beyond the ten day limitation on appeals established by Section 502 of the Unemployment Compensation Act, 43 P.S. § 822. The Board dismissed the appeal because of this late filing.

The claimant concedes that his appeal was filed late but contends that this was excusable because he notified the compensation authorities in New Jersey that his address would be changed to a location in Lynn, Massachusetts, effective October 13, 1971. There is nothing on the record to indicate when this notice was actually given, nor even whether it was given in advance of, on or after October 13.

There is no doubt that the appeal provisions of the Unemployment Compensation Law are mandatory, and that the failure to file an appeal from a referee's decision within ten days, without an adequate excuse therefor, mandates dismissal of the appeal. Paul Unemployment Compensation Case, 194 Pa.Super. 64, 166 A.2d 94 (1960); Abrams Unemployment Compensation Case, 180 Pa.Super. 580, 119 A.2d 656 (1956); Demcio Unemployment Compensation Case, 177 Pa.Super. 298, 110 A.2d 890 (1955). '(A)n aggrieved party may not appeal after the time prescribed, unless he can prove that he was deprived of his right of appeal by fraud or its equivalent, i.e., wrongful or Negligent conduct of the administrative authorities.' (Emphasis added.) Ferretti Unemployment Compensation Case, 195 Pa.Super. 234, 236, 171 A.2d 594, 595 (1961). See Keys Unemployment Compensation Case, 183 Pa.Super. 164, 130 A.2d 262 (1957); Bee Unemployment Compensation Case, 180 Pa.Super. 231, 119 A.2d 558 (1956); Marshall Unemployment Compensation Case, 177 Pa.Super. 259, 111 A.2d 165 (1955). 'Something more than mere hardship is necessary to justify an extension of time for appeal.' Neupauer Unemployment Compensation Case, 198 Pa.Super. 186, 187, 181 A.2d 743, 744 (1962).

We can find nothing in this record which would...