Van Duser v. Unemployment Compensation Board of Review

FRIEDMAN, Judge,

concurring.

I concur in the result reached by the majority in this case; however, I write separately to note my concern over the majority’s inclusion of dicta to resolve a question which is not before us and which this court has never considered previously. Here, as stated in footnote 3 of the majority opinion, Claimant waived the issue of fault overpayment raised before the referee at 93-01-E-397. Thus, the only issue requiring our review is the termination of Claimant’s benefits which the referee considered at 93-01-E-396. With regard to the termination, Claimant, the burdened party, was unsuccessful despite being the only party to testify; therefore, our standard of review clearly is capricious disregard. Blackwell v. Unemployment Compensation Board of Review, 124 Pa.Commonwealth Ct. 9, 555 A.2d 279 (1989). The facts here do not require us to determine whether a different scope of review applies to individual issues within a single appeal taken from two separate orders; therefore, I see no need to make that determination. By using a complicated approach to an uncomplicated factual situation, the majority unnecessarily delves into an unsettled area of law. Compare Herbert v. Unemployment Compensation Board of Review, 131 Pa.Commonwealth Ct. 601, 571 A.2d 526 (1990) and Tomczak v. Workmen’s Compensation Appeal Board (Pro-Aire), 150 Pa.Commonwealth Ct. 431, 615 A.2d 993 (1992).