Opinion
No. 1929 C.D. 2014
07-07-2015
Colleen Burgher, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Colleen M. Burgher (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a decision by a Referee dismissing Claimant's appeal as untimely under Section 501(e) of the Pennsylvania Unemployment Compensation Law (Law). In response, the Board filed a motion to quash the appeal, alleging that Claimant waived the issue of timeliness. We now deny the Board's motion to quash and affirm the Board's order.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821 (e). Section 501(e) of the Law provides:
(e) Unless the claimant . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within fifteen calendar days after such notice . . . was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.
By order dated December 10, 2014, this Court directed that the Board's motion to quash be decided with the merits of the appeal.
Claimant filed for unemployment compensation benefits following termination of her employment with Aetna Life Insurance Company (Employer). On April 18, 2014, the Erie UC Service Center (Service Center) issued a Notice of Determination in which it determined that Claimant was eligible for benefits. (Certified Record (C.R.), Item No. 5.) The Notice of Determination stated that Claimant is scheduled to receive $77,000 in severance pay from Employer, thus the pay is deductible under Section 404(d)(1) of the Law and that Claimant will receive $0 from April 5, 2014, to January 3, 2015, and $573 per week thereafter. (Id.) The final day to timely appeal the Notice of Determination was May 1, 2014.
Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P.S. § 804(d)(1).
Claimant filed an appeal to the Notice of Determination on May 28, 2014, after the statutory limit had expired, claiming that the total severance amount was incorrect for she was receiving about $37,593.92, not $77,000, for her severance pay. (C.R., Item No. 6.) A Referee conducted a hearing on June 20, 2014, to determine whether the appeal was untimely and to hear testimony and evidence on the issue of the amount of the severance payment. After hearing the Claimant's testimony, the Referee found that the appeal was untimely and dismissed the appeal. (C.R., Item No. 11.) The Referee explained that Claimant admitted to receiving the Notice of Determination prior to May 1, 2014, knew that the last day to file an appeal was May 1, 2014, and had not shown fraud, a breakdown of administrative process, or non-negligent reasons for failing to timely appeal. (Id.)
Claimant's original appeal states $37,648 as the amount total, but she later stated at the hearing that the actual number is $37,593.92. The Referee confirmed $37,593.92 as the actual severance payment during the hearing. (See C.R., Item Nos. 6 and 10.)
Claimant appealed to the Board, and the Board issued the following findings of fact:
1. A Notice of Determination (determination) was issued to the claimant on April 18, 2014, denying benefits due to receipt of severance.(C.R., Item No. 14.) The Board concluded that Claimant's appeal was untimely and affirmed the Referee's decision dismissing the appeal. Claimant then petitioned this Court for review of the Board's order.
2. A copy of this determination was mailed to the claimant at her last known post office address on the same date.
3. There is no evidence to indicate that the determination sent to the claimant was returned as undeliverable by the postal authorities.
4. The notice informed the claimant that May 1, 2014 was the last day on which to file an appeal from this determination.
5. The claimant filed her appeal by e-mail on May 28, 2014.
6. There is no evidence that the claimant was misinformed or misled by the unemployment compensation authorities regarding her right or the necessity to appeal.
7. The claimant's husband placed this document in the home and the claimant did not realize until that [sic] there was an issue with the amount of her severance until after May 1, 2014.
On appeal, Claimant essentially argues that (1) substantial evidence does not exist to support the Board's finding of fact number 6 that Claimant was not mislead or misinformed by unemployment compensation authorities and (2) the Board erred as a matter of law when it concluded that Claimant's appeal was untimely.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
Claimant also argues the merits of the case throughout her appeal, stating that the Notice of Determination had the incorrect severance pay amount, thus delaying when she is eligible for benefits and decreasing the amount paid. This Court, however, need not address this argument, because we conclude that the appeal is untimely.
The Board argues that Claimant waived the issue of the timeliness of her appeal to the Board, because she failed to include the issue in her petition for review filed with this Court. Issues that are not raised in a petition for review or fairly comprised therein are waived and, therefore, will not be addressed by the Court on appeal. Pa. R.A.P. 1513(d); Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006). A review of the petition for review reveals that Claimant mentioned in the petition that the appeal to the Board was late, but she does not develop the issue in her petition for review. She does develop the issue to some extent in her brief. The Court, however, is able to discern the issue from the petition for review and brief, and we will address it on appeal.
Our Supreme Court recently amended Pa. R.A.P. 1513(d)(5) to provide that "the omission of an issue from the statement [of objections in a petition for review] shall not be the basis for a finding of waiver if the court is able to address the issued based on the certified record." This amendment, however, did not become effective until January 1, 2015, which is subsequent to the filing of the petition for review in this matter. Here, however, there is a mention of the untimeliness in the petition for review, and our decision to not find waiver is consistent with our Supreme Court's intention not to confine a party to the framing of the issues as set forth in the petition for review. --------
First, we will address Claimant's argument that substantial evidence does not exist to support the Board's finding of fact number 6. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 378 A.2d 829, 831 (Pa. 1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 485 A.2d 359, 365 (Pa. 1984). "The fact that [a party] may have produced witnesses who gave a different version of the events, or that [the party] might view the testimony differently than the Board is not grounds for reversal if substantial evidence supports the Board's findings." Tapco, Inc. v. Unemployment Comp. Bd. of Review, 650 A.2d 1106, 1108-09 (Pa. Cmwlth. 1994). Similarly, even if evidence exists in the record that could support a contrary conclusion, it does not follow that the findings of fact are not supported by substantial evidence. Johnson v. Unemployment Comp. Bd. of Review, 504 A.2d 989, 990 (Pa. Cmwlth. 1986).
Finding of fact number 6 provides that "[t]here is no evidence that [C]laimant was misinformed or misled by the unemployment compensation authorities regarding [Claimant's] right or the necessity to appeal." (C.R., Item No. 14.) Claimant testified that she spoke with two unemployment compensation representatives concerning the error in the Notice of Determination. Claimant also states that the representatives told her that she would receive the full benefit amount, but they would have to research the error and get back to her with the correction. She claims she waited a week before calling back and was then told by the representative about the ramifications of not appealing the determination. Claimant subsequently filed an appeal on May 28, 2014.
At the hearing, the Referee asked Claimant when she spoke with the representatives. Claimant stated that she looked at the determination after May 1, 2014, and she called the representative when she discovered the severance error. Claimant also stated that she then waited about a week after talking to the representative to file her appeal. Thus, Claimant contacted the representative sometime during the week of May 19, 2014, almost three weeks after the appeal filing deadline. Because Claimant spoke with the representatives almost three weeks past the filing deadline, it cannot be said that the information provided to Claimant by the representatives could have misled Claimant, because she did not seek help from the representatives until after the deadline. In addition, the one representative even informed Claimant about the ramifications of not appealing the determination in a timely manner. We conclude, therefore, that substantial evidence supports the Board's finding of fact number 6.
Second, we will address Claimant's argument that the Board erred as a matter of law in concluding that the appeal was untimely. Section 501(e) of the Law provides that unless a claimant files an appeal with respect to a Notice of Determination within fifteen calendar days after it was mailed to her last known post office address, such determination will be final and compensation shall be paid or denied in accordance therewith. The fifteen-day time limit is mandatory and subject to strict application. Renda v. Unemployment Comp. Bd. of Review, 837 A.2d 685, 695 (Pa. Cmwlth. 2003), appeal denied, 863 A.2d 1151 (Pa. 2004). Failure to timely appeal an administrative agency's action is a jurisdictional defect, and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Sofronski v. Civil Svc. Comm'n, City of Philadelphia, 695 A.2d 921, 924 (Pa. Cmwlth. 1997). Thus, a petitioner carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). As a result, an appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counselor or a third party. Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996).
At the hearing, the Referee found that a Notice of Determination, dated April 18, 2014, was mailed to Claimant and that the determination informed Claimant that the last day to appeal was May 1, 2014. Claimant testified that she received the Notice of Determination on or before May 1, 2014, called an unemployment compensation representative to discuss the determination around the week of May 19, 2014, and filed an appeal on May 28, 2014. It is clear from the record that Claimant received the Notice of Determination before May 1 and filed her appeal on May 28, 2014, after the filing deadline had already passed. The Referee also found that Claimant was not misled or misinformed by compensation authorities, so an appeal nunc pro tunc cannot be justified on that basis. Thus, the Board did not commit an error of law in finding the appeal to be untimely.
Claimant does attempt to justify her untimely appeal on the fact that her husband misplaced the document and that she was under "tremendous anxiety and stress" from being laid off. (Petitioner's Brief at 9-10.) Claimant's husband's misplacing of the Notice of Determination does not constitute extraordinary circumstances involving fraud or some breakdown in the administrative process or non-negligent circumstances. Cook, 671 A.2d at 1131. Rather, the misplacement of the determination is negligence on Claimant's and Claimant's husband's part. Furthermore, "tremendous anxiety and stress" does not fit into any of the extraordinary circumstances listed above. As such, we must agree with the Board that Claimant failed to establish legal circumstances justifying a late appeal. The Board properly dismissed Claimant's appeal as untimely.
Accordingly, the Board's motion to quash Claimant's petition for review is denied, and the order of the Board dismissing Claimant's appeal as untimely is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 7th day of July, 2015, it is hereby ordered that the motion to quash filed by the Unemployment Compensation Board of Review (Board) is DENIED, and the order of the Board is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge