Pickering v. Commonwealth , 80 Pa. Commw. 315 ( 1984 )

Opinion ¡by

Judge Doyle,

This is an appeal by WilMam J. Pickering .(Claimant) of an order of the Unemployment Compensation Board of Review (Board) which 'affirmed a decision of a referee dismis,sing las untimely Claimant’s appeal from ,an Office of Employment Security determination.

. Claimant was last employed as a maintenance man by the Tomibrook Corporation. He was laid off from that position and filed for unemployment compensation benefits. The Office of Employment Security (OES), determined that Claimant was eligible for benefits at ia rate of $163.00 per week but deducted $155.00 from his weekly amount under Section 404(d) of the Unemployment ¡Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,: as amended, 43 P.S. §804(,d). Section 404(d) provides, in pertinent part:

Notwithstanding any other provisions of this section each .eligible employe who is unemployed .with respect t’o ¡any week ending subsequent to the first day of July, one thousand ninp hundred eighty, shall be plaid, with respect to such week, compensation in an 'amount equal to his weekly benefit rate less the total of . . . (iii) ,an amount equal to the amount of a governmental or other pension, retirement or retired pay, .annuity, or any other similar periodic payment which is based on the previous work of .such individual, which is reasonably .attributable to such week, in accordance with this -subsection.

'Claimant had been receiving a service-connected disability pension since his -retirement from the Philadelphia police force.

On December 7, 1981, Claimant received notice from the OES that his weekly benefits would be reduced by the .amount .of his 'disability pension. The notice advised Claimant .of his right to appeal within fifteen days. Claimant ¡did not file an appeal -of the OES determination until February 1, 1982. Following a hearing, a referee determined that Claimant’s appeal .of the OES determination was untimely filed. On appeal to the Board, the matter was remanded to the referee for further hearing. Following that hearing the Board affirmed the decision -o-f the referee. Appeal to this Court followed.

Before this Court, Claimant urges that -the .appeal period should be waived 'and stresses that -on December 1,1981, the Beard issued a decision in another case which held that a disability pension received from the Philadelphia Police Department would not reduce unemployment compensation benefits. He argues that -on December 7, 1981, the OES personnel knew -or -should have known about the December 1 decision and that had he or his counsel been ¡aware .of it, a timely appeal would have been filed. Claim-ant urges that his failure to file a timely appeal is therefore attributed to the error -of the OES personnel.

It is well settled that the appeal process will be extended only where it can be shown that the compensation authorities have engaged in fraudulent conduct or its equivalent, i.e. wrongful or negligent conduct. Berger v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 476, 449 A.2d 818 (1982); Berry v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 565, 382 A.2d 487 (1978).

Claimant testified that in October of 1981, prior to the OES determination notice, Claimant was told by OES personnel that appeal of the deduction of his pension amount would have little chance of success. 'The record is equally clear, however, that Claimant fully understood his right to appeal.¹ Claimant testified to no inquiry regarding the likely success of an appeal after receipt of the December 7, 1981, notice during the running of the appeal period. Even if we were to charge OES personnel with immediate constructive knowledge of the December 1, 1981, Board decision, which we do not, we could not reasonably hold that the misinformed interpretation of the law offered months prior to the Board’s decision constituted willful or negligent conduct equivalent to fraudulent deprivation of Claimant’s appeal rights. The record in the case at bar shows only administrative misinterpretation of the law and misapplication of its provisions to Claimant’s circumstances. This was simply legal error, not fraud, and it is just such errors which the administrative appeal process was designed to remedy. To challenge such misapplication and correct such errors, however, a claimant must file a timely appeal.

Order

Now, February 15, 1984, the order of the Unemployment Compensation Board of Review in the above referenced matter, No. B-206673, dated June 9, 1982, is hereby affirmed.

1 Claimant testified .that he also contacted his attorney who advised Claimant of his right to appeal but opined that an appeal would probably not be successful. The record does not disclose the source of the attorney’s interpretation of the law.