§ 101.87. Issues considered on original appeal.
When an appeal is taken from a decision of the Department, the Department shall be deemed to have ruled upon all matters and questions pertaining to the claim. In hearing the appeal the tribunal shall consider the issues expressly ruled upon in the decision from which the appeal was filed. However, any issue in the case may, with the approval of the parties, be heard, if the speedy administration of justice, without prejudice to any party, will be substantially served thereby.
Source The provisions of this § 101.87 adopted August 26, 1970, effective August 27, 1970, 1 Pa.B. 435.
Notes of Decisions Basis of Decision
Referee’s reliance on a legal theory not relied upon by the Office of Employment Security will not result in a reversal of the referee’s decision unless reliance on the issue results in surprise or prejudice to the claimant. Hine v. Unemployment Compensation Board of Review, 520 A.2d 102 (Pa. Cmwlth. 1987).
Compensation Denied
Denial of unemployment compensation solely on the basis of section 3 of the Unemployment Compensation Law does not violate the provisions of this regulation when the claimant is dismissed from employment due to conviction of welfare fraud and is therefore unemployed as a result of her own fault. Wilson v. Unemployment Compensation Board of Review, 428 A.2d 288 (Pa. Cmwlth. 1981).
Evidence
The Unemployment Compensation Board of Review may only consider the merits of issues delineated in the Bureau of Employment Security’s determination notice. Hanover Concrete Co. v. Unemployment Compensation Board of Review, 402 A.2d 720 (Pa. Cmwlth. 1979).
This regulation requires that the evidence adduced and the determination made at the referee’s hearing be limited to the legal issue ruled on by the Bureau in its notification of ineligibility for benefits. Corressel v. Unemployment Compensation Board of Review, 385 A.2d 615 (Pa. Cmwlth. 1978).
The evidence adduced at the referee’s hearing must be limited to the reasons stated in the notice of ineligibility given to the claimant by the Bureau. Bilsing v. Unemployment Compensation Board of Review, 382 A.2d 1279 (Pa. Cmwlth. 1978).
Expressly Ruled Open
The Department is deemed to have ruled on all matters and issues relating to a claim for benefits. Therefore the Board erred when it considered the merits of issues not delineated in the O.E.S.’s determination notice. Harwood v. Unemployment Compensation Board of Review, 531 A.2d 823 (Pa. Cmwlth. 1987).
This and other provisions of the unemployment compensation regulations support the view that the referee and Board properly refused to rule on issue which was not raised before the Office of Employment Security. Glesk v. Unemployment Compensation Board of Review, 525 A.2d 1249 (Pa. Cmwlth. 1987).
General Comment
This section limits the referee to a consideration of those issues expressly ruled upon by the Office of Employment Security from which the appeal was filed. Sterling v. Unemployment Compensation Board of Review, 474 A.2d 389 (Pa. Cmwlth. 1984).
This section merely limits the referee to considering issues raised by the action of the Office of Employment Security, unless the parties agree otherwise. Gould v. Unemployment Compensation Board of Review, 466 A.2d 750 (Pa. Cmwlth. 1983).
Issues Properly Considered
Where the Bureau’s initial determination in favor of the claimant stated only that she had been an employee and not an independent contractor, but the employer’s appeal to the referee also raised the issue of voluntary termination, the referee was mistaken in his belief that he could not hear the second issue. Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002).
Although the unemployment claimant’s petitions for appeal from the job center did not raise any issues specifically, the issues which were decided by the job center were the same issues addressed by the referee and were subsequently discussed by the Unemployment Compensation Board of Review. Thus, pursuant to § § 101.87 and 101.107, the referee and Board correctly considered the Claimants’ appeals. Black Lick Trucking, Inc. v. Unemployment Compensation Board of Review, 667 A.2d 454 (Pa. Cmwlth. 1995).
Where demotion was raised in the context of litigation of the issue of ‘‘cause of a necessitous and compelling nature,’’ the court found that the Office of Employment Security had considered the issues for purposes of this regulation. Greco v. Unemployment Compensation Board of Review, 560 A.2d 300 (Pa. Cmwlth. 1989).
The Board had the authority to consider the claimant’s ineligibility under its ability to review the issues expressly ruled upon in the referee’s decision, despite the claimant’s desire not to have that issue reviewed on appeal. Jordan v. Unemployment Compensation Board of Review, 547 A.2d 811 (Pa. Cmwlth. 1988).
Claimant, who recognized that willful misconduct was a potential issue, consented, by his conduct, to an issue not raised in the Office of Employment Security determination and was not prejudiced by the referee’s decision to consider willful misconduct instead of voluntary guilt as a basis for denying benefits. Brooks v. Unemployment Compensation Board of Review, 547 A.2d 493 (Pa. Cmwlth. 1988).
Where referee did not rule on claimant’s work performance, but gave claimant opportunity for extension of proceedings with notice that issue of work performance was to be addressed, claimant, who refused extension, could not claim unfair surprise so as to preclude the referee or Board from ruling on an issue. Shearer v. Unemployment Compensation Board of Review, 527 A.2d 615 (Pa. Cmwlth. 1987).
Referee properly considered and ruled upon issue on appeal, despite fact that employer did not reopen inquiry into issue, since Office of Employment Security had expressly ruled upon and delineated issue in its determination notice. Wilder & Miller v. Unemployment Compensation Board of Review, 525 A.2d 852 (Pa. Cmwlth. 1987).
Where the claimant did not consent to consideration of section 402(e) of the Unemployment Compensation Law (43 P. S. § 802(e)) and the Bureau did not rule on the issue, the referee could not change the legal basis for denial of unemployment compensation at the hearing level. Giddens v. Unemployment Compensation Board of Review, 516 A.2d 866 (Pa. Cmwlth. 1986).
A referee on appeal must consider only those charges of willful misconduct delineated in the OES determination notice; therefore, to allow a critique of other conduct against which charge the employer is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited. Comp v. Unemployment Compensation Board of Review, 478 A.2d 503 (Pa. Cmwlth. 1984).
Although a remand is normally required to cure any prejudice to the claimant resulting from a change in legal theory from that found in the original Office of Employment Security determination, such a remand was not necessary where the case had previously been remanded and reheard numerous times and it was evident that the claimant had not been prejudiced by the change in legal theory from the original OES determination to the final Board order. Clark v. Unemployment Compensation Board of Review, 471 A.2d 1309 (Pa. Cmwlth. 1984); appeal after remand 497 A.2d 261 (Pa. Cmwlth. 1985); appeal denied 527 A.2d 546 (Pa. 1987).
If the Office of Employment Security notifies a claimant of ineligibility by reason of willful misconduct, the referee and the Board of Review may not determine that it is a case of a voluntary quit. The matter will be remanded for further consideration of the issue ruled on by the Office of Employment Security. Feinberg v. Unemployment Compensation Board of Review, 448 A.2d 664 (Pa. Cmwlth. 1982).
Since the evidence adduced and determinations made at the referee’s hearing are limited to the legal issues ruled on by the Bureau, to allow a determination of a legal issue which the claimant is unprepared to defend or explain is fundamentally unfair and will not be allowed. Goodman v. Unemployment Compensation Board of Review, 447 A.2d 1127 (Pa. Cmwlth. 1982).
If the Office of Employment Security expressly rules upon an issue, the referee on appeal may rule upon that issue, even if the claimant does not intend to reopen inquiry into that particular issue. Lenz v. Unemployment Compensation Board of Review, 432 A.2d 1149 (Pa. Cmwlth. 1981).
Party Approval
Referee properly refused to consider whether claimant’s switch to part-time employment constituted a voluntary termination of full-time employment without cause of a compelling nature, since claimant would not agree to have that issue determined. Wilder & Miller v. Unemployment Compensation Board of Review, 525 A.2d 852 (Pa. Cmwlth. 1987).
Where the parties have consented, under this section, to have a referee rule on an issue not addressed by the Office of Employment Security decision, but where the referee declined to reach the issue, the Unemployment Compensation Board of Review should obtain a second independent expression of the parties’ consent to rule on the unaddressed issue, under 34 Pa. Code § 101.107(b). Bennett v. Unemployment Compensation Board of Review, 491 A.2d 314, 318 (Pa. Cmwlth. 1985) (dissenting opinion).
Remand
The Board had the authority to remand to the referee to determine the issue of voluntary termination, which had been properly raised by the employer. Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 1019 (Pa. Cmwlth. 2002).
Waiver
In unemployment compensation proceedings employer waived issue of whether claimant was fired for willful misconduct, and thus ineligible for benefits, where the theory was not raised before Bureau of Employment Security but was first advanced in Commonwealth Court. Wing v. Unemployment Compensation Board of Review, 436 A.2d 1179 (Pa. 1981).
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