Opinion
No. 786 C.D. 2014
03-17-2015
Mark J. Cerciello, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Mark J. Cerciello (Claimant) petitions for review of the April 11, 2014, order of the Unemployment Compensation Board of Review (UCBR) affirming a referee's decision to deny Claimant's request to backdate his claim for unemployment compensation (UC) benefits pursuant to section 401(c) of the Unemployment Compensation Law (Law) and the UCBR's regulation at 34 Pa. Code §65.43a. We reverse and remand for further proceedings.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §801(c).
On December 9, 2012, Claimant filed an application for UC benefits. On December 18, 2012, the Department of Labor and Industry (Department) mailed Claimant a notice of financial determination finding Claimant financially ineligible for UC benefits. On December 28, 2012, Claimant's counsel faxed an appeal of that determination to the local service center. (UCBR's Findings of Fact, Nos. 1-3.)
On January 2, 2013, the Department mailed Claimant a decision vacating the Department's December 18, 2012, determination. On January 31, 2013, the Department mailed Claimant a revised notice of financial determination finding Claimant financially eligible for UC benefits. On September 16, 2013, Claimant contacted the Department to report that he had not been filing biweekly claims for UC benefits because he had enough money in savings. (Id., Nos. 4-6.)
On December 9, 2013, Claimant requested that his claim be backdated for the weeks ending December 15, 2012, through August 31, 2013. On the claimant questionnaire, when asked why he failed to timely file claims for the requested dates, Claimant wrote that the Department "never told me when or how to file. My lawyer came out to the [Department]." (Id., Nos. 7-9.) On December 16, 2013, the Department denied Claimant's backdating request. Thereafter, Claimant appealed.
On January 22, 2014, Claimant's counsel attended the referee's hearing but Claimant did not. Claimant's counsel stated that Claimant did not file for UC benefits before September 2013 because Claimant never received the January 31, 2013, revised notice of financial determination. (N.T., 1/22/14, at 7.) Following the hearing, the referee denied Claimant's backdating request.
Claimant appealed, and on April 11, 2014, the UCBR adopted and incorporated the referee's findings and conclusions and affirmed. On April 22, 2014, Claimant filed a request for reconsideration with the UCBR. On May 12, 2014, Claimant petitioned this court for review of the UCBR's order. On May 28, 2014, the UCBR notified Claimant that it lacked jurisdiction to issue a ruling on his request for reconsideration.
Claimant argues that the UCBR erred in concluding that Claimant did not meet the requirements for backdating his claim for the weeks ending December 15, 2012, through August 31, 2013, because irregularities by the Department prevented him from timely filing. Claimant also argues that the Department's failure to mail Claimant's counsel the revised notice of financial determination deprived Claimant of his right to counsel. However, we need not reach the merits of Claimant's appeal because we conclude that the Department lacked jurisdiction to vacate its initial determination and issue a revised determination.
Our 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Jurisdiction cannot be waived and may be raised sua sponte by this court. Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993). --------
Sections 421(d) and (e) of the Law provide:
(d) The department shall notify any employer or claimant who has been notified as required under subsections (a) and (c) of this section of any revision made in the determination as contained in the original notice given to such employer or claimant.
(e) Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or 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.43 P.S. §821(d), (e).
This court has held that these subsections, read together, mean that "a determination can be revised before it becomes final as long as no appeal has been filed. In other words, if a determination is appealed within the 15 allotted days, it cannot then be revised even though it does not become final." Garza v. Unemployment Compensation Board of Review, 669 A.2d 445, 447 (Pa. Cmwlth. 1995) (emphasis added). Likewise, the Department may vacate its initial determination and then later issue a new determination, but only if the Department vacated the initial determination before the claimant appealed it. Larry Pitt & Associates, P.C. v. Unemployment Compensation Board of Review, 712 A.2d 827, 829 (Pa. Cmwlth. 1998). If a claimant timely appeals the Department's determination or revised determination, a referee shall conduct a hearing and notify the parties and their counsel or representatives of the time and place of the hearing. Section 422 of the Law, 43 P.S. §822.
Here, the Department mailed Claimant its initial notice of financial determination on December 18, 2012. Claimant's counsel faxed Claimant's appeal of the initial determination to the local service center on December 28, 2012, five days before the January 2, 2013, deadline to appeal. Once Claimant appealed the initial determination, the referee should have scheduled a hearing pursuant to section 422 of the Law. Because Claimant appealed, the Department was divested of jurisdiction to vacate its initial determination and issue a revised determination.
Accordingly, we reverse the UCBR's order and remand to the UCBR with instructions to remand to the referee for a hearing on whether the Department erred in denying Claimant's December 9, 2012, application for UC benefits.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge Judge Simpson dissents.
ORDER
AND NOW, this 17th day of March, 2015, we hereby reverse the April 11, 2014, order of the Unemployment Compensation Board of Review and remand for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge