Sanabria v. Commonwealth

Opinion by Judge Wilkinson,

On December 12, 1972, the Referee affirmed the decision of the Bureau of Employment Security that appellant was ineligible for benefits on the grounds that he was not totally unemployed. By his own allegation, the first action taken by appellant thereafter was a letter dated December 28, 1972, but mailed in an envelope postmarked December 27, .1972, addressed to

Department of Labor and Industry

Unemployment Compensation Board of Review

Harrisburg, Pennsylvania 17121

The letter was received by the Board of Review on January 2, 1973. The complete letter follows:

“December 28, 1972.

To the Workmen’s Compensation Board of Review, Harrisburg, Pa.

Re: Claim Petition SS No. .196-40-0465 appeal 72-2-6-243

I hereby file an appeal from the award of Referee Albert Tucker, Sr.

(S/) S. Gonzalo Sanabria

Windermere Court Apt. 3-A

Wayne, Pa. 19087”

On April 26, 1973 the Secretary of the Board informed appellant that his communication of December 27, 1972 initiating an appeal from the decision of the Referee issued on December 12, 1972, appeared not to have been taken timely, i.e., it was not taken within 10 days after the date on which the decision was issued. However, the Secretary properly informed appellant he could file a Petition for Appeal and have *44 an official determination of its timeliness by tbe Board. Tbe Petition for Appeal was filed on May 2, 1973, specifying the date of tbe decision being appealed to be December 12, 1972.

On May 11, 1973 tbe Secretary of tbe Board again informed appellant that tbe appeal did not appear to be filed in a timely fashion. However, tbe appellant was given tbe opportunity to request a bearing that would be confined to tbe issue of whether tbe appeal was timely filed. Tbe letter advised appellant that unless tbe Board received a request for such a bearing within 10 days of May 11, 1973, tbe date of that letter, tbe Board would proceed to issue an appropriate order.

Neither the record nor appellant’s brief indicates that appellant requested tbe Board to bold a bearing to permit appellant to produce evidence that tbe appeal was timely filed.

On July 2, 1973 tbe Board entered the only Order tbe law would permit on tbe facts of this case. The appeal was dismissed as being filed beyond the statutory 10,-day period for filing. Tbe requirements of Section 502 of tbe Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess. P. L. (1937) 2897, as amended, 43 P.S. §822, are mandatory in the absence of fraud or manifestly wrongful or negligent conduct by tbe administrative agency. Ferretti Unemployment Compensation Case, 195 Pa. Superior Ct. 234 , 171 A. 2d 594 (1961). No such evidence was offered and, in fact, no hearing was requested to offer such evidence.

Accordingly, we enter tbe following

Order

Now, February 27, 1974, tbe Order of tbe Unemployment Compensation Board of Review, dated July 2, 1973, dismissing appellant’s appeal in tbe above matter, is affirmed.