Opinion
No. 711 C.D. 2014
10-03-2014
Sharon Walter, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Sharon Walter (Claimant) petitions for review, pro se, of the April 18, 2014, order of the Unemployment Compensation Board of Review (UCBR) affirming a referee's dismissal of Claimant's appeal. The UCBR determined that Claimant's appeal from the Department of Labor and Industry's (Department) notice of determination was untimely under section 501(e) of the Unemployment Compensation Law (Law). We affirm.
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 that:
[u]nless the claimant . . . files an appeal with the [UCBR], from the determination contained in any notice required to be furnished by the department . . . 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 . . . shall be final and compensation shall be paid or denied in accordance therewith.43 P.S. §821(e).
After her separation from employment with Family Dollar (Employer) on October 6, 2013, Claimant applied for unemployment compensation (UC) benefits. On November 18, 2013, the Department mailed to Claimant's last known address a notice of determination, finding that Claimant had voluntarily quit and was thus ineligible for UC benefits. The notice informed Claimant that the deadline for filing an appeal was December 3, 2013. Claimant filed her appeal on December 7, 2013. (UCBR's Findings of Fact, Nos. 1-6.)
Section 402(b) of the Law, 43 P.S. §802(b), provides that an employee is ineligible for compensation for any week "[i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature." 43 P.S. §802(b).
On January 3, 2014, the referee conducted a hearing at which only Employer appeared. On January 16, 2014, the referee issued a decision dismissing Claimant's appeal as untimely. (Ref. Decision, 1/16/14, at 1.) Claimant appealed to the UCBR, which ordered the case remanded to the referee to serve as the UCBR's hearing officer. (UCBR Order, 3/7/14, at 1.) The purpose of the remand was to allow Claimant to explain her nonappearance at the referee's hearing and present evidence on the late filing issue and on the merits. (Id.)
The referee held the second hearing on March 25, 2014, at which both Claimant and Employer presented evidence. (N.T., 4/18/14, at 1-3.) After receiving the record from the referee, on April 18, 2014, the UCBR issued a decision, determining that Claimant had good cause for not appearing at the initial referee hearing. (UCBR Order, 4/18/14, at 1.) The UCBR also affirmed the referee's January 16, 2014, decision dismissing Claimant's appeal, after adopting the referee's findings of fact and conclusions of law. (Id.) Claimant now petitions this court for review.
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. Lopresti v. Unemployment Compensation Board of Review, 55 A.3d 561, 562 n.2 (Pa. Cmwlth. 2012).
Initially, Claimant argues that the UCBR erred in dismissing her appeal as untimely because the Department's determination did not list a mailing address for the appeal. We disagree.
Claimant testified at the April 18, 2014, hearing that she filed her appeal within the 15-day time limit. (N.T., 11/18/13, at 6.) The UCBR determined that she did not, and Claimant does not challenge this finding. --------
Under section 501(e) of the Law, 43 P.S. §821(e), a claimant must file an appeal of a Department determination within 15 days of the mailing date; otherwise, the determination becomes final. Edwards v. Unemployment Compensation Board of Review, 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994). "[T]his fifteen-day time limit is mandatory and subject to strict application." Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996). When an appeal is filed by mail, the date of filing is determined by the official United States Postal Service (USPS) postmark, a USPS certificate of mailing, or a USPS certified mail receipt. 34 Pa. Code §101.82(b)(1)(i).
Claimant had until December 3, 2013, 15 days from the November 18, 2013, mailing date of the notice of determination, to appeal. However, Claimant's appeal is postmarked December 7, 2013. A claimant's late filing may be excused if she can show that her delay was "caused by extraordinary circumstances involving 'fraud or some breakdown in the court's operation through a default of its officers.'" Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996) (citations omitted). "An appellant may satisfy this heavy burden in one of two ways. First, [s]he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, [s]he can show non-negligent conduct beyond [her] control caused the delay." Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (internal citation omitted).
Claimant admitted at the March 25, 2014, hearing that she received all three pages of the Department's November 18, 2013, notice of determination. (N.T., 4/18/14, at 5.) The Department's counsel stated that the second page of the determination contained filing instructions and a mailing address; Claimant replied that she did not see these instructions. (Id.) However, Claimant's failure to review the appeal instructions is not an administrative breakdown. Therefore, Claimant failed to establish that a breakdown in the Department's operations caused her delay.
Next, Claimant argues that the UCBR erred in dismissing her appeal as untimely because inclement winter weather delayed her filing, and because the postal service had been delivering mail to the wrong mail boxes. We disagree.
Claimant did not raise the issue of inclement weather or a mail delivery problem in her appeal to the UCBR, nor did she reference them during the April 18, 2014, hearing. Therefore, Claimant waived these issues. Schneider v. Unemployment Compensation Board of Review, 523 A.2d 1202, 1204 (Pa. Cmwlth. 1987). Additionally, an appellate court cannot consider information that is not part of the certified record. Hempfling v. Unemployment Compensation Board of Review, 850 A.2d 773, 777 (Pa. Cmwlth. 2004). Because Claimant failed to establish that her delay in filing should be excused, the UCBR properly dismissed Claimant's appeal as untimely.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 3rd day of September, 2014, we hereby affirm the April 18, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge