169 Pa. Super. 158 | Pa. Super. Ct. | 1951
Opinion by
In this unemployment compensation ease, the question is whether the claimants filed timely appeals from the decision of the referee refusing benefits to them. The Board of Review, without passing on the merits
On November 23, 1949, each of the claimants filed an appeal from the bureau’s decision. The referee to whom the cases were referred, by his decision dated May 10, 1950, affirmed the decision of the bureau and denied benefits. Each of the claimants was .mailed a copy of the referee’s decision attached to which was a paper headed “Notice of Referee’s Decision”, giving the date of the notice of the decision as May 10, 1950, and setting forth the rules relative to the procedure to be followed for further appeal.
This notice stated, inter alia: “. . . The Unemployment Compensation Law provides that an appeal may be filed by any of the parties from this decision within ten (10) days after the date of this notice. Notice of request for a further appeal should be given personally or by mail to the . . . office which rendered the original decision in this case. . . . Period for filing a request for further appeal expires on May 20, 1950, at 12:00 o’clock midnight.” (Italics supplied.)
The claimants, through their attorneys, wrote a request for further appeal and a properly addressed envelope containing such request was deposited in the post office shortly after twelve o’clock noon on Saturday, May 20,1950. The letter was received by the Pennsylvania State Employment Service Office at Johns-town on Monday, May 22, 1950; it was, however, postmarked 5:00 p.m. May 21, 1950. The Board of Review, after a hearing, by order entered September 21, 1950, dismissed the appeals on the ground that the petitions for appeal had not been filed or postmarked within ten days of the date of the referee’s decision, and from this order the claimants appeal.
The Board of Review calls to our attention section 501 of the Unemployment Compensation Law as amend
The notices required to be furnished by the department under section 501 (a), (c) and (d) are notices of the various determinations of the bureau. These claimants have perfected their appeal from the adverse ruling of the bureau, and hence section 501 (e) has no present application.
The provision which must govern our determination of this appeal is section 502 of the Unemployment Compensation Law as amended, 43 PS 822, which is headed “Decision of referee; further appeals and reviews”, and provides, inter alia: “Where an appeal from the determination or revised determination, as the case may be, of the department is taken, a referee shall, after affording the parties reasonable opportunity for a fair hearing, affirm, modify, or reverse such findings of fact and the determination or revised determination, as the case may be, of the department as to him shall appear just and proper. The parties shall be duly notified of the referee’s decision, and the reasons therefor, which shall be deemed the final decision of the board, unless within ten days after the date of such decision the board acts on its own motion, of upon application, permits any of the parties to institute a -further appeal before the board. ”
It must be observed that section 502, supra, in contrast to section 501, supra, does not require that a claimant file his petition for appeal from the referee’s decision. The outer limit of ten days is fixed by the provision; but what will constitute making application within such period is left to the board, acting within the provisions of section 505.
These rules were promulgated by the Board of Review September 30, 1942 to implement section 502:
“109. Further Appeal:
“Within ten (10) days after the decision of a Referee the claimant, the Department, or any affected party may file an application for a further appeal with the Board. . .”
“202. Form and Filing of Application:
“An application for the allowance of an appeal from the decision of a Referee shall be filed in any Local Employment Office with a person authorized by the Board to receive the same . . . An application for the allowance of an appeal from a decision of the Referee will be filed within the prescribed time if it is filed in the form and manner hereinbefore, specified on or before the tenth day after the .date on which notification of the deci-. sion of. the Referee was mailed to the. appellant, at his last known .post office address.”. . -
. The present position of the -board .is that we should construe the word “file’-’ used by it-in its rule to mean “to deliver to the proper officer so that it is received.
Prior to the present appeal the understanding of this Court of the board’s rule was that an application mailed on or before the tenth day after the date of the referee’s decision was timely. In Gill Unemployment Compensation Case, 165 Pa. Superior Ct. 605, 70 A. 2d 422, the last day to file an appeal was February 26, 1949. We stated: “Since the appeal form and the instructions for completing the same were not mailed until February 23, it was physically impossible for the claimant [in California] to have received them in the ordinary course of the mails, complete the form, and have it in the return -mail by February 26, the date on which the time for taking the appeal expired.” (Italics supplied.)
The decision of the Board of Review is reversed, and the claims are reinstated.