Opinion
No. 1389 C.D. 2011
02-06-2012
Avraham Ezra, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Avraham Ezra (Claimant) petitions this Court for review of the July 1, 2011 order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of the Referee and dismissing Claimant's appeal. Claimant presents two issues for this Court's review: (1) whether Claimant had a credible reason for the late filing of his appeal, and (2) whether Claimant is a 50 percent owner of Forever Diamonds (Employer). We affirm.
On March 18, 2011, the Philadelphia Unemployment Compensation (UC) Service Center mailed a letter of determination to Claimant denying him benefits under Section 402(h) of the Unemployment Compensation Law (Law). On March 21, 2011, the UC Service Center mailed two additional notices of determination to Claimant; the first assessed the Claimant an overpayment under Section 804(a) of the Law, and the second assessed the Claimant a penalty under Section 801(b) of the Law. Claimant filed an appeal on April 7, 2011. A hearing was held before a Referee to determine the timeliness of Claimant's appeal. On May 5, 2011, the Referee mailed his decision dismissing Claimant's appeal under Section 501(e) of the Law. Claimant appealed to the UCBR. On July 1, 2011, the UCBR affirmed the decision of the Referee. Claimant appealed to this Court.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h).
43 P.S. § 874(a).
43 P.S. § 871(b).
43 P.S. § 821(e).
This Court's review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were committed. Johnson v. Unemployment Comp. Bd. of Review, 869 A.2d 1095 (Pa. Cmwlth. 2005).
Claimant argues that he had good cause for filing an untimely appeal. Specifically, Claimant contends that because he immediately notified counsel that he wished to appeal and counsel encountered some complications trying to reach the UC Service Center prior to filing his appeal, good cause exists to permit his appeal. We disagree.
Initially we note the general rule that, '[t]he appeal provisions of the law are mandatory: failure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.' If an appeal is not filed within fifteen days of the mailing of the determination, it becomes final, and the Board does not have the requisite jurisdiction to consider the matter. Appeal periods, even at the administrative level, are jurisdictional and may not be extended as a matter of grace or indulgence; otherwise, there would be no finality to judicial action. Therefore, an appeal filed one day after the expiration of the statutory appeal period must be dismissed as untimely.Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (citations omitted). Here, Claimant's appeal of the UC Service Center's determinations was required to be filed on or before April 4, 2011 for the determination mailed March 18, 2011, and on or before April 5, 2011 for the determinations mailed March 21, 2011. Claimant's appeal was not filed until April 7, 2011.
Clearly, Claimant did not file his appeal in time. Although, "an appeal nunc pro tunc may be allowed when a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the court's operation through a default of its officers" or "the non-negligent conduct of the appellant's attorney or his staff," none of these circumstances occurred in the instant case. Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, 383-84, 671 A.2d 1130, 1131 (1996) (quotation marks omitted).
At the hearing before the Referee, when the Claimant was asked why his notice of appeal shows that he filed on April 7, 2011 if in fact he filed on time, Claimant responded: "Yeah, they tried to contact this office quite a, you know, few times and then they just faxed that I guess. So maybe that's why you find the difference. But, I did file the Appeal on time." Original Record, Item No. 10 at 4. When specifically asked if he had anything to show that he filed his appeal on time, Claimant responded: "No, I haven't anything." Id. Thus, there is no adequate excuse in the record for not filing the appeal on time. Accordingly, the UCBR did not have jurisdiction to hear the matter and properly dismissed the appeal as untimely.
Claimant's attorney did not appear at the hearing.
Because we have determined that Claimant's appeal was untimely, the second issue is no longer before the Court. --------
For all of the above reasons, we affirm the UCBR's order.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 6th day of February, 2012, the July 1, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
ANNE E. COVEY, Judge