60 A.2d 583 | Pa. Super. Ct. | 1948
Argued April 13, 1948. Does section 501(e) of the Unemployment Compensation Law1 permit a party aggrieved by a decision of *170 the bureau to appeal to the board notwithstanding more than ten days have elapsed since receipt of notice thereof from the bureau, where there is neither allegation nor proof that claimant was deprived of his rights by fraud or its equivalent, i.e., wrongful or negligent conduct of administrative authorities? That is the sole question to be determined on this appeal by Sylvester Turner from an order of the Unemployment Compensation Board of Review affirming disallowance of his appeal by the referee because it was not filed within the ten-day period required by the Unemployment Compensation Law, supra.
Claimant, on May 10, 1946, was employed by the Carnegie Illinois Steel Company, Homestead, Pennsylvania, as a laborer. On that date he was notified that because of a strike by coal miners the resulting lack of coal compelled a shutdown of the plant, and on May 17, 1946, he was laid off. After the strike ended, claimant did not return to work. Instead, he informed his employer on July 2, 1946, that he would seek work elsewhere.
On July 21, 1946, Turner filed his claim for unemployment compensation benefits for weeks ending July 28, August 4 and August 11, 1946. The bureau, on August 16, 1946, disallowed benefits assigning as the reason that claimant had disqualified himself by having voluntarily left his employment, without cause, within the meaning of section 402(b) of the Unemployment Compensation Law,
Claimant argues that the appeal should have been allowed for the reasons that (1) the tardiness was due to illness of his counsel, and (2) the board waived the provisions of the Act by allowing the appeal in the first instance and referring it to a referee. The board contends the time limitation provision of the statute is mandatory and that it is without power to waive the provisions thereof except in circumstances not present here. The contentions of the board must be sustained.
The language of section 501(e) supra, provides that "Unless the [party aggrieved] . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within ten (10) calendar days after such notice was . . . mailed to his last known post office address, . . . such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith." Such statutory provision is mandatory.
"The mandatory or directory nature of a statute depends on whether the thing directed to be done is of the essence of the thing required: Singer v. Delaware L. W.R.R. Co.,
The provisions of the Act being mandatory, the burden was upon claimant to show facts which would bring the case within the principle that where a party has been prevented from doing an act through fraud or its equivalent, i.e., ignorant or negligent acts of an administrative official, power exists to allow an appealnunc pro tunc if prosecuted within a reasonable time. See Nixonv. Nixon,
Claimant did not file his appeal within the time required by law; nor has he sustained the burden of showing that he was "misled by an officer who [was] authorized to act in the premises": (Tuttle Unemployment Compensation Case, supra); that there was neglect upon the part of an administrative officer; or any other circumstances from which fraud or its equivalent could be determined. Notwithstanding failure to seasonably appeal to the referee from the bureau's decision, the appeal to this Court was properly taken.3
Decision affirmed.