Beers v. UNEMP. COMP. BD. OF REVIEW , 534 Pa. 605 ( 1993 )

OPINION OF THE COURT

CAPPY¹, Justice.

The question presented is one of first impression: whether employees have standing to appeal a determination by the Office of Employment Security (“OES”) that certain fruit and vegetable processing operations are “seasonal operations” as defined by and pursuant to Section 802.5 of the Unemployment Compensation Law. 43 P.S. § 802.5. For the reasons that follow, we find that employees do not have standing to appeal a determination by the OES that certain fruit and vegetable processing operations are seasonal operations.

These thirteen consolidated appeals involve certain fruit and vegetable processing operations performed at plants located in Pennsylvania. The employers at each of these plants applied to the OES requesting a determination that these operations were seasonal operations for the purposes of Section 802.5.² In each instance, the OES granted seasonal status to the employer pursuant to a Notice of Determination. Each of these Notices was appealed by an employee or an employee representative to a referee; the referee decisions were appealed to the Unemployment Compensation Board of Review (the “Board”); and the Board decisions were appealed to the Commonwealth Court.

Four of the appeals (Nos. 367, 404, 1754 and 1764 C.D.1987) were consolidated for argument in the Commonwealth Court at Beers v. Pennsylvania Unemployment Compensation Board of Review, 118 Pa.Commw. 248, 546 A.2d 1260 (1988). In that case, the Commonwealth Court affirmed the decisions of the Board granting seasonal status to each employer.³

Eight of the appeals (Nos. 1058-1062, 1109, 1110 and 1900 C.D.1988) were consolidated for argument in the Commonwealth Court at VanMetre v. Pennsylvania Unemployment Compensation Board of Review, 128 Pa.Commw. 644, 564 A.2d 540 (1989). The Board had granted seasonal status in five of those appeals (Nos. 1058-1062 C.D.1988) and denied it in the remaining three appeals (Nos. 1109, 1110 and 1900 C.D.1988). The court quashed, for lack of jurisdiction, the five appeals in which the Board had granted seasonal status. In the remaining three appeals, the court vacated the orders of the Board denying seasonal status, reinstated the OES determinations granting seasonal status and dismissed the appeals.⁴

In the remaining appeal (No. 1504 C.D.1989), Myers v. Unemployment Compensation Board of Review, the Board had granted seasonal status. The Commonwealth Court summarily dismissed the Petition for Review.

Following appeal to the Commonwealth Court, appellants requested allowance of appeal before this Court, which we granted. Beers was granted and argued first. Thereafter, upon request, for reargument which we granted, Beers was consolidated with VanMetre and Myers and we scheduled oral argument on all three consolidated cases. Not all of the parties to the appeals sub judice raised the standing issue.⁵ We found that issue pertinent to all of the appeals, thus, prior to oral argument, we ordered all of the parties to brief the issue.

The following three arguments were made in the instant appeals to support the employees’ assertion that they have standing to appeal an unfavorable OES determination of seasonal status: (1) the employees were aggrieved by the determination and thus were aggrieved parties who had standing pursuant to the common law, (2) Section 802.5(e) of the Unemployment Compensation Law confers standing on employees and (3) -without standing employees would have no opportunity to challenge an unfavorable OES determination of seasonality because Section 829 of the Unemployment Compensation Law would prevent the employees from collaterally attacking an OES seasonal status determination in his or her later unemployment compensation benefit hearing. Not every employee made all three of these arguments; however, in order to dispose of these appeals in the most expeditious and efficacious manner, we have chosen to address each of these arguments in all of the appeals.

First, we turn to the question of whether the employees were aggrieved parties.⁶ It is well established that in order to have standing to challenge an official order or action, a party must be “aggrieved” thereby. South Whitehall Township Police Service v. South Whitehall Township, 521 Pa. 82, 555 A.2d 793 (1989); Upper Bucks County Vocational-Technical School Education Association v. Upper Bucks County Vocational-Technical School Joint Committee, 504 Pa. 418, 474 A.2d 1120 (1984); Franklin Township and County of Fayette v. Pennsylvania, Department of Environmental Resources, 500 Pa. 1, 452 A.2d 718 (1982); Wm. Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) (plurality opinion). A party “who is not adversely affected in any way by the matter he seeks to challenge is not ‘aggrieved’ thereby.” Wm. Penn, 464 Pa. at 192, 346 A.2d at 280.

In order to be “aggrieved” “a party must (a) have a substantial interest in the subject-matter of the litigation; (b) the interest must be direct; and (c) the interest must be immediate and not a remote consequence.” South Whitehall, 521 Pa. at 86, 555 A.2d at 795. The interest which the employees are seeking to protect in these appeals is their right to collect unemployment compensation benefits.

In Parker v. Pennsylvania, Department of Labor and Industry, 115 Pa.Commw. 93, 540 A.2d 313 (1988), aff'd per curiam, 521 Pa. 531, 557 A.2d 1061 (1989), reh’g denied, the Commonwealth Court held that an OES determination of seasonal status is not an adjudication of an employee’s right to collect unemployment compensation benefits.⁷ A finding of seasonal status is only one of the issues relevant to an employee’s ineligibility under Section 802.5 to collect unemployment compensation benefits. If an employee is later denied unemployment compensation benefits and decides to appeal that decision, he or she will have the opportunity at his or her unemployment compensation benefit hearing to litigate the issues relevant to the denial of his or her claim including the issue of whether the operation for which the employee works is, in fact, a seasonal operation. As such, employees are not adversely affected by and do not have a substantial, direct and immediate interest in an OES determination of seasonal status. Thus,- they are not “aggrieved” by such determination and lack standing to challenge it.

The second argument raised, that 43 P.S. § 802.5(e) confers standing to appeal an OES seasonal status determination on employees, is without merit. Section 802.5(e) provides as follows: “Any determination issued under the provisions of this section shall be subject to review in the same manner and to the same extent as all other determinations issued under this act.” Section 802.5(e) does not confer standing on any party, rather, Section 802.5(e) provides that a party who has standing may seek review of an unfavorable OES seasonal status determination in the same fashion as all other determinations issued under the Unemployment Compensation Law. Thus, Section 802.5(e) does not confer standing on employees to appeal an unfavorable OES seasonal status determination.

The last argument advanced, that 43 P.S. § 829 would prevent an employee from collaterally attacking an OES seasonal status determination in his or her later unemployment compensation benefit hearing, is likewise without merit. Section 829 provides, in pertinent part, as follows:

Subject to appeal proceedings and judicial review, any right, fact or matter in issue which was directly passed upon or necessarily involved in any decision of a referee or the board or the Court and which has become final shall be conclusive for all purposes of this act and shall not be subject to collateral attack as among all affected parties who had notice of such decision ...

43 P.S. § 829 (emphasis added). It is clear from the plain words of the statute that Section 829 only applies to parties to a proceeding. There is no provision in Section 802.5 for participation by employees in the OES decision as to seasonal status. Seasonal status is determined by the OES solely upon written application by an employer. 43 P.S. § 802.5(b).⁸ Since employees are not parties to the OES determination of seasonality, they are not subject to Section 829. Therefore, they are free to attack a holding of seasonal status in a collateral proceeding, namely, their unemployment compensation benefit hearing.

For all of the foregoing reasons, we conclude that employees do not have standing to appeal an unfavorable OES determination of seasonality.⁹

Accordingly, we affirm the decision of the Commonwealth Court in VanMetre vacating the orders of the Board, reinstating the OES decision and dismissing the appeals in the following appeals: 121 M.D. Appeal Docket 1990 (Nos. 1109, 1110 and 1900 C.D.1988).

Further, we affirm the decision of the Commonwealth Court in Myers summarily dismissing the Petition for Review and reinstate the OES decision in the following appeal: 138 M.D.Appeal Docket 1990 (No. 1504 C.D.1989).

Further, we reverse the decision of the Commonwealth Court in Beers affirming the decisions of the Board granting seasonal status and reinstate the OES decision in the following appeals: 23 M.D.Appeal Docket 1989 (No. 367 C.D.1987), 24 M.D.Appeal Docket 1989 (No. 404 C.D.1987), 25 M.D.Appeal Docket 1989 (No. 1764 C.D.1987) and 26 M.D.Appeal Docket 1989 (No. 1754 C.D.1987).

Further, we vacate the decision of the Commonwealth Court in VanMetre quashing for lack of jurisdiction the appeals in which the Board granted seasonal status and reinstate the OES decision in the following appeals: 117 M.D.Appeal Docket 1990 (Nos. 1058 and 1061 C.D.1988), 118 M.D.Appeal Docket 1990 (No. 1059 C.D.1988), 119 M.D.Appeal Docket 1990 (No. 1060 C.D.1988) and 120 M.D.Appeal Docket 1990 (No. 1062 C.D.1988).

The parties in the instant appeals raised numerous other issues for our review, however, our resolution of the standing issue precludes our addressing those issues.

LARSEN, J., did not participate in the consideration or decision of this case. McDERMOTT, J., did not participate in the decision of this case. PAPADAKOS, J., files a dissenting opinion.

1 . This opinion was reassigned to this writer.

2 . Section 802.5 provides, in relevant part, as follows:

(a) Notwithstanding any other provision of this act with respect to service performed in a “seasonal operation” or "seasonal industry,” as defined in this section, benefits shall not be paid to a seasonal worker, based on such services, for any week of unemployment occurring outside of the normal seasonal period of operation, provided there is a contract or reasonable assurance that such seasonal worker will perform services in that seasonal industry in his next normal seasonal period.

43 P.S. § 802.5(a). "Seasonal operation” is defined as "an operation in which it is customary for an employer engaged in a seasonal industry ... to operate all or a portion of its business during a regularly recurring period of one hundred eighty (180) days of work or less for a normal seasonál period during a calendar year.” 43 P.S. § 802.5(h)(4).

3 . The Commonwealth Court in Beers mistakenly stated that two of the four appeals therein were from an order of the Board reversing a decision of the referee to deny seasonal status. In fact, only one of those appeals was from an order of the Board reversing a decision of the referee to deny seasonal status. The other three appeals were from an order of the Board affirming a decision of the referee to grant seasonal status. Beers, 118 Pa.Commw. at 253-54, 546 A.2d at 1263.

4 . The Commonwealth Court’s holding in VanMetre overruled that portion of the Beers opinion which held that employees have standing to appeal an OES determination granting seasonal status. The Commonwealth Court did not overrule the remainder of the Beers opinion because it believed its application of Section 802.5 to the facts of Beers was correct. It did state, however, that because it believed Beers should have been quashed, it was improper for the court to have reached the merits of that appeal.

5 . Several of the parties correctly point out that issues not raised below are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302. However, this Court, pursuant to Rule 105(a) of the Pennsylvania Rules of Appellate Procedure may “in the interest of expediting decision, or for other good cause shown ... disregard the requirements or provisions of any of [the rules of appellate procedure] in a particular case ... on its own motion and may order proceedings in accordance with its direction.” Pa.R.A.P. 105(a).

6 . Some of the parties to the appeals sub judice confuse the issue of standing with that of jurisdiction and argue that, since employees are not "aggrieved” by an OES determination of seasonal status, they do not have the right to appeal such determination to the Commonwealth Court and that, as such, the Commonwealth Court lacks jurisdiction to hear such a case. See 2 Pa.C.S. § 702 and 42 Pa.C.S. § 763. Whether a party has standing to maintain an action is not a jurisdictional question. Jones Memorial Baptist Church v. Brackeen, 416 Pa. 599, 207 A.2d 861 (1965). We wish to make clear that we decide herein that employees do not have standing to appeal an OES determination of seasonal status; we do not decide whether the Commonwealth Court had jurisdiction to hear the instant appeals.

7 . An “adjudication” is defined as “[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.C.S. § 101 (emphasis added). There is no provision in Section 802.5 for participation by employees in the OES decision as to seasonal status. Thus, employees are not parties to the OES proceeding and, as such, an OES determination of seasonal status is not a final determination of the employees’ right to collect unemployment compensation benefits.

8 . Section 802.5(b) provides, in pertinent part, as follows:

Upon written application filed with the department by an employer engaged in a “seasonal industry,” as defined in this section, the secretary shall determine ... the normal seasonal period during which workers are ordinarily employed for the purpose of carrying on seasonal operations in the seasonal industry in which such employer is engaged.

9 . We are cognizant that this decision may result in inconsistent decisions with respect to the seasonal status of any given fruit and vegetable processing operation if one employee successfully challenges an OES determination of seasonal status at his or her unemployment compensation hearing and another employee is not so successful. However, we are constrained to apply the law as promulgated by the legislature and must leave to them the task of remedying this problem by amending the statute so as to grant standing to employees to participate in and appeal an OES determination of seasonal status granted pursuant to Section 802.5 if they see fit.