Counsel v. Unemployment Compensation Board of Review

690 A.2d 1258, 1997 Pa. Commw. LEXIS 95, 1997 WL 88916
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 28, 1997
DocketNo. 1910 C.D. 1996
StatusPublished
Cited by1 cases

This text of 690 A.2d 1258 (Counsel v. Unemployment Compensation Board of Review) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Counsel v. Unemployment Compensation Board of Review, 690 A.2d 1258, 1997 Pa. Commw. LEXIS 95, 1997 WL 88916 (Pa. Ct. App. 1997).

Opinion

JIULIANTE, Senior Judge.

Before us for disposition is the Unemployment Compensation Board of Review’s motion to quash Claimant Kenneth Counsel’s petition for review to this Court from a decision of an unemployment compensation referee. Pursuant to section 5103 of the Judicial Code, we can transfer erroneously-filed appeals to a tribunal.1 The issue presented in this ease is whether we should transfer the erroneously-filed appeal to the Board as a tribunal or whether we should grant the motion to quash because Claimant failed to exhaust his administrative remedies by failing to appeal first to the Board. We conclude that the Board is not a tribunal and, therefore, grant the Board’s motion to quash Counsel’s petition for review.

On May 29, 1996, an unemployment compensation referee issued a decision therein determining that Claimant was ineligible for benefits due to willful misconduct. On June 14, 1996, Claimant’s attorney filed a petition for review with this Court from the referee’s decision. No appeal of the referee’s decision was ever filed with the Board.

On August 12, 1996, the Board filed a motion to quash Claimant’s petition on the grounds that he failed to exhaust his administrative remedies by failing to file an appeal to the Board as required under section 502 of the Unemployment Compensation Law [1260]*1260(Law).2 In his October 15, 1996 response in opposition to the motion, Claimant requests that we either (1) consider the referee’s order to be the “final” order as an appeal therefrom would have been fruitless; or (2) deem his appeal to this Court as timely filed and transfer the case to the Board because Board employees misled him regarding his appeal.

Section 502 of the Law provides that the referee’s decision shall be deemed the final decision of the Board unless an appeal is filed therefrom or the Board acts on its own motion and orders a review of the referee’s decision. 43 P.S. § 822. In Killian v. Unemployment Compensation Board of Review, 46 Pa.Cmwlth. 219, 405 A.2d 1372 (1979), we interpreted the meaning of a referee’s decision being deemed “final.”

In Killian, the claimant similarly filed a petition for review of a referee’s order with this Court and failed to seek review before the Board. We granted the motion to quash, stating that a claimant must exhaust his administrative remedy by seeking Board review of an adverse referee determination before seeking judicial review. In so doing, we noted that the purpose of a “deemed” final decision

is to afford finality to the referee’s determination but [that] such “deemed” finality does not vitiate one’s duty to seek Board review of the referee’s determination as an administrative remedy to be exhausted before the matter is ripe for judicial review.

Id., 405 A.2d at 1374. We further noted that

[i]f a person aggrieved by a referee’s determination could directly seek judicial review without first seeking Board review by the expedient of doing nothing until fifteen days after the referee’s determination, the Board’s quasi-judicial role in the administrative review process if not totally frustrated would be seriously proscribed at the option of the disappointed litigant. The legislature could not have intended such a result.

Id. at 1375.

Accordingly, we reject Claimant’s argument that we should excuse his failure to appeal to the Board on the theory that the referee’s decision was “final.” Thus, we turn to Claimant’s request that we deem his appeal as timely filed and transfer his appeal to the Board.

In 1982, the General Assembly amended section 5103 to include a definition of “tribunal:”

As used in this section “tribunal” means a court or district justice or other judicial officer of this Commonwealth vested with the power to enter an order in a matter, the Board of Claims, the Board of Property, the Office of Administrator for Arbitration Panels for Health Care and any other similar agency.[3]

42 Pa.C.S. § 5103(d) (emphasis added). Factors that we have considered in determining whether an agency is a tribunal are whether it is a Commonwealth agency with statewide jurisdiction and whether its original jurisdiction involves subjects that are traditionally identified with the judiciary, i.e. subjects that are also in other instances within the original jurisdiction of the courts. Meck v. Carlisle Area School District, 155 Pa.Cmwlth. 469, 625 A.2d 203 (1993).

Here, the Board argues that it is not a tribunal or “any other similar agency” under section 5103. It cites Carolina Freight Carriers Corp. v. Workmen’s Compensation Appeal Board (Armitage), 137 Pa.Cmwlth.85, 585 A.2d 555 (1990), petition for allowance of appeal denied, 528 Pa. 632, 598 A.2d 285 (1991) in support of its argument.

In that case, the party similarly filed an appeal to this Court from a workers’ compensation judge’s opinion without first appealing to the Board. We held that, “[although the Board qualifies as a Commonwealth agency with state-wide jurisdiction, it would not appear to exercise the- type of jurisdiction [1261]*1261which would lead to its classification as an agency similar to those listed in Section 5103(d).” Id., 585 A.2d at 559. Thus, we concluded that our Court did not have authority to transfer the appeal to the Board.

In DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213 (Pa.Cmwlth.1997), another case in which a claimant erroneously appealed from an unemployment compensation referee’s decision directly to this Court, we relied upon Carolina Freight and held that the Unemployment Compensation Board of Review was not a tribunal. We noted that, although the Unemployment Compensation Board of Review is a Commonwealth agency with statewide jurisdiction, it does not exercise jurisdiction over subject matters which are also within the original jurisdiction of the courts. DiJohn, 687 A.2d at 1215-16. A brief explanation of the procedure by which unemployment compensation claims are processed illustrates the Board’s specific role in unemployment compensation law and the reasons why unemployment compensation is not a subject traditionally associated with the judiciary.

In 1936, the General Assembly passed the Unemployment Compensation Law thereby establishing a system of unemployment compensation to be administered by the Department of Labor and Industry. The Law “calls for the compulsory ‘setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.’” Morrison v. Department of Corrections, 659 A.2d 620, 623 (Pa.Cmwlth.1995).

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690 A.2d 1258, 1997 Pa. Commw. LEXIS 95, 1997 WL 88916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/counsel-v-unemployment-compensation-board-of-review-pacommwct-1997.