Peda v. Commonwealth

Dissenting Opinion by

Judge MacPhail :

I respectfully dissent.

The fair hearing issue was not presented in the briefs to this Court. It was first raised in oral argument. Our initial decision holding that a referee’s failure to advise uncounseled claimant’s of their rights was handed down June 3,1981. Katz v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 427, 430 A.2d 354 (1981). The instant case was argued before us on September 17,1981.

Pa. E. A.P. 2116 (a) states in pertinent part:

(a) General Rule. The statement of the questions involved must state the question or questions in the briefest and most general terms, without-names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page1, without any other matter appearing thereon. This rule is to he considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby. (Emphasis added.)

Inasmuch as Claimant had ample opportunity to set forth this issue by way of a supplemental brief which would then have put the Board on notice of the issue and afforded the opportunity to the Board to reply, I feel that the .Claimant has no right to present the issue for the first time at oral argument.

I disagree with the majority that the circumstances of this case fall within the purview of Pa. E.A.P. 1551 *187(a)(3). Nothing prohibited this Claimant from presenting the issue of a fair hearing to the' Board. Many-other claimants did so. The fact that neither the Board nor the courts had held that the referee had such duties would not have prevented the Claimant from presenting the question by the exercise of due diligence as many others, before and since, have done.

While I heartily agree with this Court’s decision in Katz (see Hoffman v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 108, 430 A.2d 1036 (1981)), I see no reason to extend its benefits to those who do not timely and properly raise the issue.

I would affirm the Board.