Seidita v. Commonwealth

Opinion by Judge Doyle, This is an appeal by Cristoforo Seidita (Claimant) from an order of the Unemployment Compensation Board of Review (Board) which affirmed a referees decision denying Claimant benefits. Although the benefits were denied on the basis of Sections 402(b) and 401(d) (1) of the Únemployment Compensation Law,1 the question which we must decide is whether the Board [417] abused its discretion in ignoring Claimants request to reopen the hearing. Claimant stopped working for his employer when his position was abolished. He was offered another position which he declined for medical reasons. The referee found,' however, that there were other positions available which Claimant could have done and that Claimant voluntarily terminated his employment to relocate to Florida despite the fact that continuing work was available. Therefore, benefits were denied. Claimant, apparently while still in Florida, desired and requested a hearing on the denial of benefits. At approximately the same time Claimant sought the hearing he relocated to Pennsylvania. On November 26, 1986 a notice was mailed to Claimants Florida address advising him of a telephone hearing on the discontinuance of his benefits, said hearing to be held on December 8, 1986. On November 28, 1986, Claimant alleges that he notified the Office of Employment Security (OES) of his new Pennsylvania address. The OES records, however, reflect an address change as of December 8, 1986. Although Claimants hearing notice was mailed twelve days before the hearing and although his sister in Florida was, according to statements the referee put on the record, forwarding his mail, he alleges that as of December 8, he had not received the hearing notice. Thus, he did not show up for the hearing (neither did the employer). The referees decision was mailed to Claimant at his Florida address on December 8, 1986, the date of the hearing. Claimant received this decision (presumably it was forwarded to him in Pennsylvania) on December 15, 1986 and timely appealed to the Board requesting, inter alia, that the record be reopened.2 The Board af [418] firmed the referee on the merits, but nowhere in its decision did it specifically mention or consider the request to reopen the record. This, despite the fact that the Claimant in his appeal to the Board alleged, inter alia, that he spoke personally to an OES worker, Richard Schweitzer, who,, on December 4, 1986 told him that his hearing was not yet scheduled. This, ,of course, is in conflict with the November 26th hearing notice which is in the record. It appears from Claimants appeal request that there, was. some confusion because had Claimant, remained in Florida his hearing would have been by telephone but because he had moved back to Pennsylvania his hearing would need to be conducted, at the local OES office. In any event, it is certain that the hearing which was held was the telephone hearing and that the referee had placed a call to Florida. Despite the Claimants allegations in his appeal request, the Board, as previously noted, never ruled upon Claimants request to reopen the record. Board Regulation 101.24(c), 34 Pa. Code §101.24(c), authorizes the Board to reopen, a record; it further provides that where a timely request for such relief is filed “the Board will rule upon the request.” This samp regulation also, states that, if the request is denied, “the Board will append to the record the request, .supporting material and the ruling on. the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.” In the instant case, although Claimants request is on the record, there is no Board ruling on the request nor does the Board order on the merits address the request in any way. This makes appellate review impossible. We have held in just such a case that the remedy is to re [419] mand to the Board for it to determine whether a claimants failure to appear at the hearing was for proper cause and if it was, to reopen the hearing. See Cannady v. Unemployment Compensation Board of Review, 87 Pa. Commonwealth Ct. 457, 487 A.2d 1028 (1985). We shall follow Cannady in this case. Accordingly, based upon the foregoing discussion the order of the Board is vacated and this case is remanded. Order Now, April 25, 1988, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby vacated and this case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished. Footnotes [1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(b), 801(d)(1). [2] The question of whether to grant a reopening ,of the record is within the discretion of the Board. Gordon v. Unemployment Com [418] pensation Board of Review, 44 Pa. Commonwealth Ct. 270, 403 A.2d 235 (1979).