32 Pa. Commw. 334 | Pa. Commw. Ct. | 1977
Opinion by
Edward L. Mileski (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) reversing a referee’s grant of benefits. Since the record in this case fails to indicate that notice of the employer’s appeal to the Board was properly forwarded to the claimant, we vacate the Board’s
The claimant was discharged by Computerm Corporation (employer) in January 1975 for allegedly falsifying his expense account.
It is well established that, when the Board allows an appeal, all parties shall have the opportunity to be heard on the issues. See Davidson Unemployment Compensation Case, 189 Pa. Superior Ct. 543, 151 A. 2d 870 (1959) (hereinafter Davidson II); Davidson
Thus, Section 504 of the Unemployment Compensation Law, Act of December 5,1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §824, provides, in relevant part:
When any claim pending before a referee is removed or transferred to the board, the board shall afford the parties and the department reasonable opportunity for a fair hearing.
Discussing this language in Davidson I, supra, 186 Pa. Superior Ct. at 293, 142 A.2d 460, the Superior Court stated that, although the Board need not take additional testimony, “it must afford the parties an opportunity to be heard on every appeal.” See also Davidson II, supra, 189 Pa. Superior Ct. at 549, 151 A.2d at 874.
In compliance with this constitutional and statutory mandate, the rules of the Board provide that any party may request an opportunity for oral or written argument and that such request will be granted
To support his contention, claimant relies on the fact that there is nothing in the record to indicate that notice of the employer’s appeal to the Board was ever forwarded to him by the local bureau office. The Board, while admitting that the record is silent on this point, relies on the presumption of the regularity of the acts of public officials — here, the rule requirement that the local bureau officials forward to all parties notices of appeal — to support its position that notice was properly forwarded to the claimant in this particular' case.
Our review of the cases in which the latter presumption has been applied has revealed no instance where the mere existence of a rule requiring an act to be performed by a public official has been sufficient to raise a presumption that the act was in fact performed. Rather, the presumption has been used only under circumstances where there was some other indication that the act in question had been performed in the particular case. See Unemployment Compensation Board of Review v. Hart, 22 Pa. Commonwealth Ct. 225, 348 A.2d 497 (1975) (proof that notice of the Board’s decision was actually mailed would raise presumption that such notice contained all the appropriate information); Wheatcroft v. Schmid, 8 Pa. Commonwealth Ct. 1, 301 A.2d 377 (1973) (affidavit of tax assessor that he had posted premises subject to tax sale established presumption that he had properly posted the premises).
Thus, if there were any indication in this record that notice was mailed to this claimant at his last known address, such as a notation to that effect made
Order
And Now, this 10th day of November, 1977, the order of the Unemployment Compensation Board of Review, dated June 10, 1976, denying unemployment benefits to Edward L. Mileski, is hereby vacated, and this case is remanded to the Board for further proceedings consistent with this opinion.
We have little doubt that a deliberate falsehood may constitute willful misconduct, so as to render an employee ineligible for benefits under Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e). See Miokovic Unemployment Compensation Case, 195 Pa. Superior Ct. 203, 171 A.2d 799 (1961).
The Board, of course, may exercise its usual discretion in deciding whether additional testimony is necessary. See Davidson, II, supra.