Opinion
October 2, 1952.
December 12, 1952.
Unemployment compensation law — Appeal from decision of Bureau — Failure to appeal within time prescribed — Absence of extenuating circumstances.
1. The provisions of the Unemployment Compensation Law fixing the time within which an appeal may be taken from a decision of the Bureau of Unemployment Compensation are mandatory, and, when no extenuating circumstances are shown, one who has failed to appeal within the time prescribed is necessarily precluded from having the case considered on its merits.
2. Tuttle Unemployment Compensation Case, 160 Pa. Super. 46, Held controlling.
Before RHODES, P.J., HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Appeal, No. 19, March T., 1953, by claimant, from decision of Unemployment Compensation Board of Review, Decision No. B-28388, in case of Edward Gay v. Unemployment Compensation Board of Review. Order affirmed.
Edward S. Gay, appellant, in propria persona.
William L. Hammond, Special Deputy Attorney General, with him Robert E. Woodside, Attorney General, for appellee.
Argued October 2, 1952.
In this unemployment compensation case the appellant, Edward Gay, was last employed by Horn and Hardart Baking Company. He was discharged on January 11, 1952, for sleeping on the job, and this after repeated warnings about such conduct by the manager. On February 11, 1952, claimant registered for work and filed application for benefits in the local employment office.
On March 11, 1952, the bureau issued a decision holding that the claims were invalid because the claimant had provoked his own discharge within the meaning of § 402 (e) of the Unemployment Compensation Law, 43 P. S. § 802 (e).
Claimant filed by mail his appeal from the bureau's decision. The envelope in which the appeal was contained was postmarked, "Philadelphia, Pa., March 22, 1952, 5:30 p.m." This was one day after the decision had become final under § 501 (e) of the Unemployment Compensation Law, 43 P. S. § 821. The referee, after hearing the case dismissed the appeal for want of jurisdiction, and on April 30, 1952, the Board filed a decision affirming the referee.
Under the regulation of the board, appeals made by mail will be deemed to be filed on the postmark date of mailing.
There was no evidence showing anything to take the case out of the rule set forth in Tuttle Unemployment Compensation Case, 160 Pa. Super. 46, 49 A.2d 847, wherein it was said at page 47: "It is the general rule that where an act of assembly fixes the time within which an appeal may be taken, courts have no power to extend it, or to allow the act to be done at a later day, as a matter of indulgence. Something more than mere hardship is necessary to justify an extension of time, or its equivalent, an allowance of the act nunc pro tunc." See also Turner Unemployment Compensation Case, 163 Pa. Super. 168, 60 A.2d 583, and Von Kaenel Unemployment Compensation Case, 163 Pa. Super. 173, A.2d 586. The appeal provisions are mandatory, and when no extenuating circumstances were shown, the claimant was neccessarily precluded from having the case considered on its merits, and the Board could only affirm the referee's decision.
Order affirmed.