Wednesday, June 11, 2008

UC- appeal - preservation/waiver of issues

Pearson v. UCBR - ordered to be reported August 18, 2008 - Commonwealth Court -

http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_8-18-08.pdf

original unreported decision - June 11, 2008
http://www.courts.state.pa.us/OpPosting/CWealth/out/2238CD07_6-11-08.pdf

The court rejected the Board's argument that the "Claimant failed to preserve any issues for review," in which it alleged that he "failed to specifically challenge any of the Board’s findings in his petition for review or in his statement of questions involved," and that he "waived any challenge to the evidentiary support for the Board’s findings by not addressing the issue in his appellate brief."

The court said the it "may decline to consider issues a claimant fails to raise with sufficient specificity in his petition for review. See Pa. R.A.P. 1513; Deal v. Unemployment Comp. Bd. of Review, 878 A.2d 131 (Pa. Cmwlth. 2005) " and that it "may decline to consider issues a claimant raises in the argument section of his appellate brief but fails to include in his statement of questions involved. See Pa. R.A.P. 2119(a); Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76 (Pa. Cmwlth. 2005)."

However, the court "decline[d] to apply waiver in this instance. In Claimant’s petition for review, we discern two issues preserved for argument. First, Claimant contends the Board failed to 'review all the facts. ' ....We interpret Claimant’s assertion as a challenge to the evidentiary support for the Board’s findings regarding the circumstances of Claimant’s discharge. Second, we interpret Claimant’s assertion that 'this case is not strong enough” to withhold unemployment compensation benefits as challenging whether Employer met its burden to prove it discharged Claimant for cause. Id.; see also Pa. R.A.P. 1513(d) (“The statement of objections will be deemed to include every subsidiary question fairly comprised therein.”). Because Claimant sufficiently addresses these arguments in his handwritten appellate brief, we will consider them on their merits."

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