§ 101.104. Allowance or disallowance of appeal.
(a) The Board may allow or disallow any application for a further appeal without hearing, solely on the basis of the application and the record.
(b) If the further appeal is disallowed, the Board will enter an order of disallowance, notification or a copy of which order shall be mailed to each party, his counsel or authorized agent, at their last known post office addresses.
(c) If the further appeal is allowed by the Board, or if the Board removes an appeal from the referee to the Board and on its own motion assumes jurisdiction of the appeal, notification shall be mailed to the last known post office address of each interested party. The Board will review the previously established record and determine whether there is a need for an additional hearing. Under section 504 of the Unemployment Compensation Law (43 P. S. § 824), the Board may affirm, modify or reverse the decision of the referee on the basis of the evidence previously submitted in the case, or the Board may direct the taking of additional evidence, if in the opinion of the Board, the previously established record is not sufficiently complete and adequate to enable the Board to render an appropriate decision. The further appeal shall be allowed and additional evidence required in any of the following circumstances:
(1) Whenever the further appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous.
(2) It appears that there may have been a denial of a fair hearing under the rules.
(3) Under § 101.24 (relating to reopening of hearing) a request for reopening received after the decision of the referee was issued which constitutes a request for further appeal to the Board.
(d) If the Board determines that a further hearing is necessary, the case shall be remanded to a referee for the purpose of scheduling another hearing, at which hearing the referee shall serve as a hearing officer for the Board, to receive from the parties the additional information as may be pertinent and material to a proper conclusion in the case. After the record has been completed, the entire file and record of evidence shall be returned to the Board for its consideration and the further action as may be deemed appropriate.
(e) Whether or not another hearing is scheduled in connection with the further appeal, any of the interested parties may file a written request for oral or written argument. In response to the request, or on a motion by the Board, oral argument may be scheduled before the Board, at which time written briefs with five copies may be submitted for the consideration of the Board. Otherwise, the normal time allowed for submitting written argument shall be 7 days from the date of the request, which, with the approval of the Board, may be extended due to extenuating circumstances. Each party shall be afforded the opportunity to reply to the arguments and contentions of the other parties.
Source The provisions of this § 101.104 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435; amended January 19, 1979, effective January 20, 1979, 9 Pa.B. 250. Immediately preceding text appears at serial page (9420).
Notes of Decisions Discretion of the Board
The Unemployment Compensation Board of Review has wide latitude to order a remand hearing and thus this section does not require a de novo hearing. Stop-N-Go of Western Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 707 A.2d 560 (Pa. Cmwlth. 1998).
It is clearly within the Board’s discretion to remand a case for purposes of receiving additional evidence in situations when the Board deems the record inadequate. Cooper Industries, Inc. v. Unemployment Compensation Board of Review, 555 A.2d 969 (Pa. Cmwlth. 1989).
When an application for appeal is made it is within the Board’s discretion to permit the taking of additional evidence whenever the record below is silent, incomplete or erroneous regarding a material point or there appears to have been a denial of a fair hearing. Browning-Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 532 A.2d 1266 (Pa. Cmwlth. 1987); appeal denied 541 A.2d 1139 (Pa. 1988).
The Board’s failure to address the merits of the claimant’s appeal during a remand hearing was not error because the Board has discretionary power to decide when a remand hearing is necessary and what issues may be addressed during the hearing. Harrison v. Unemployment Compensation Board of Review, 457 A.2d 238 (Pa. Cmwlth. 1983).
This section grants wide latitude to the Board in ordering a remand. Clowney v. Unemployment Compensation Board of Review, 421 A.2d 515 (Pa. Cmwlth. 1980).
The decision to grant a remand is within the Board’s discretion. Shriner v. Unemployment Compensation Board of Review, 400 A.2d 934 (Pa. Cmwlth. 1979).
Evidence
The Board did not violate subsection (c) by considering evidence of the fact that the claimant had received an associate degree in applied science even though this evidence was not produced at the referee’s hearing but learned by the Board from the claimant’s petition for appeal from the referee’s decision, since there was sufficient evidence in the record that the claimant had in fact received formal electronics training. Ellwood City Hospital v. Unemployment Compensation Board of Review, 457 A.2d 231 (Pa. Cmwlth. 1983).
Further Hearing
If a party fails to appear at a hearing and, on appeal to the Board, asserts proper cause for its nonappearance, including not receiving or not timely receiving a hearing notice, the Board must remand the record to allow the nonappearing party to submit evidence regarding its nonappearance, but a remand hearing is unnecessary if the reasons proffered are clearly legally insufficient to support the finding of proper cause. Volk v. UCBR, 49 A.3d 38, 47 (Pa. Cmwlth. 2012).
A further hearing on the claimant’s health problems is inappropriate if the claimant admits quitting voluntarily because of dissatisfaction with her new work schedule and claimant’s physician testifies that he advised claimant against quitting. Martin v. Unemployment Compensation Board of Review, 407 A.2d 96 (Pa. Cmwlth. 1979).
When the claimant admits to having engaged in acts constituting willful misconduct and does not request a hearing, it is not an abuse of discretion for the Board of Review to disallow an appeal since it is not required to provide a hearing as a matter of right and may decide an appeal without taking additional evidence or hearing oral arguments. Chambers v. Unemployment Compensation Board of Review, 318 A.2d 422 (Pa. Cmwlth. 1974).
Petition for Appeal
A letter sent by an employer to a referee, in which the employer demanded that the matter be turned over to higher authorities, was a petition of appeal and was properly treated as such under § 101.104(c) and (d). Shriner v. Unemployment Compensation Board of Review, 400 A.2d 934 (Pa. Cmwlth. 1979).
Referee’s Decision
Employer was prejudiced by referee’s decision to ‘‘discredit completely and eviscerate the value’’ of evidence admitted. Philadelphia Electric Company v. Unemployment Compensation Board of Review, 565 A.2d 1246 (Pa. Cmwlth. 1989).
Right to Argument
When the Board files a decision and order without notifying the claimant that his request for oral argument has been denied and without allowing time for the claimant to file a written brief in lieu of oral argument, there is a denial of the claimant’s statutory and due process right to file a brief. Sacks v. Unemployment Compensation Board of Review, 429 A.2d 136 (Pa. Cmwlth. 1981); appeal after remand 459 A.2d 461 (Pa. Cmwlth. 1983).
If an employer appeals an adverse decision to the Board but the claimant does not receive notice of appeal as required under 34 Pa. Code § 101.103 (relating to notification of filing of application for further appeal), the right of the claimant to oral or written argument under 34 Pa. Code § 101.104(e) is violated. Mileski v. Unemployment Compensation Board of Review, 379 A.2d 643 (Pa. Cmwlth. 1977).
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