Opinion
No. 2078 C.D. 2012
04-09-2013
James T. Zapf, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
James T. Zapf (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) September 14, 2012 order affirming the Referee's decision dismissing his appeal as untimely. There are two issues for this Court's review: (1) whether the UCBR erred by affirming the Referee's decision, and (2) whether Claimant's constitutional due process rights were violated. We affirm.
Claimant included an additional issue, i.e., whether the UCBR's findings of fact were supported by substantial evidence; however, that issue is subsumed in the first issue raised in this appeal.
Claimant was employed as a full-time sprinkler fitter for Alliance Fire Systems (Employer) until March 23, 2012. Thereafter, Claimant began receiving unemployment compensation (UC) benefits. Employer subsequently notified the Duquesne UC Service Center (UC Service Center) that Claimant voluntarily retired. According to his claim record, Claimant and Employer were interviewed on June 4, 2012 about whether Claimant retired or was laid off. On June 5, 2012, the UC Service Center issued a Notice of Determination (Determination) denying Claimant UC benefits under Section 402(b) of the Unemployment Compensation Law (Law). The UC Service Center also issued a Notice of Determination - Overpayment of Benefit (Notice) to Claimant in the amount of $5,031.00. Both the Determination and Notice contained statements that the final day for Claimant to appeal was June 20, 2012. Neither the Determination nor the Notice was returned by postal authorities as undeliverable.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Claimant filed an appeal from the Determination by fax on June 25, 2012. On July 23, 2012, a Referee held a hearing and issued a decision and order dismissing Claimant's appeal as untimely. Claimant appealed to the UCBR and requested a remand hearing. On September 14, 2012, the UCBR affirmed the Referee's order, and denied Claimant's request for a remand hearing. Claimant appealed to this Court.
Claimant sought reconsideration of the UCBR's order. By reply issued November 9, 2012, the UCBR notified Claimant that since the 30-day appeal period had expired, it no longer had jurisdiction to issue a ruling on the reconsideration request.
"Our scope of review is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether the factual findings are supported by substantial evidence." Deklinski v. Unemployment Comp. Bd. of Review, 37 A.3d 1262, 1263 n.3 (Pa. Cmwlth. 2012). --------
Claimant asserts that the UCBR erred by affirming the Referee's decision. We disagree.
Section 501(e) of the Law, 43 P.S. § 821(e), provides that an appeal from the UC Service Center's notice of eligibility determination must be filed 'within fifteen calendar days after such notice was delivered to him [or her] personally, or was mailed to his [or her] last known post office
address.' . . . Failure to timely appeal an administrative agency's decision constitutes a jurisdictional defect.Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1002 (Pa. Cmwlth. 2010).
'The 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.' . . . 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 Determination had to be filed on or before June 20, 2012. Claimant's appeal was not filed until June 25, 2012. Accordingly, Claimant did not timely file his appeal.
[T]he Board may consider an untimely appeal in limited circumstances. The burden to establish the right to have an untimely appeal considered is a heavy one because the statutory time limit established for appeals is mandatory. An appellant may satisfy this heavy burden in one of two ways. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, he can show non-negligent conduct beyond his control caused the delay. [F]ailure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (citations and quotation marks omitted). At the Referee hearing, when Claimant was asked why he did not timely file his appeal, he responded: "Because I missed a date on one of my papers that I got through the unemployment office . . . ." Certified Record (C.R.) Item 12 at 4.
Claimant argued in his appeal to the UCBR, but not to the Referee, that he was misled by the UC staff. Claimant averred that he was confused after he received four sets of documents on June 8, 2012 relative to his eligibility for benefits, so he contacted the unemployment office and was informed by the staff that he was eligible for emergency benefits since his original claim ran out, and that he need not do anything further. On June 22, 2012, when he did not receive his weekly benefit payment, Claimant realized that he should have filed an appeal from the Determination. Claimant asserts herein that the UCBR failed or refused to consider evidence of the UC staff's manifestly wrongful or negligent conduct.
The UCBR cannot review evidence that was not submitted to the Referee, unless it directs the taking of additional evidence. 34 Pa. Code § 101.106; see also Lock Haven Univ. of Pa. of State Sys. of Higher Educ. v. Unemployment Comp. Bd. of Review, 559 A.2d 1015 (Pa. Cmwlth. 1989). Moreover, "[t]his Court may not consider any evidence that is not part of the certified record on appeal." Pa. Tpk. Comm'n v. Unemployment Comp. Bd. of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009). Finally, even if Claimant had notified the Referee of the above-alleged facts, they are not supported by the record. According to his claim record entries, Claimant had no contact with the UC staff between his June 4, 2012 interview and June 25, 2012. The entry for June 25, 2012, which is clearly after the appeal deadline, reflects: "CLMNT ADV DIDNT REALIZE THAT HE HAD TO HV THE APPEAL IN BY A CERTAIN DATE." C.R. Item 1 at 4. Because there is no evidence of fraud or administrative breakdown, there is no support for a nunc pro tunc appeal. Thus, we find no extraordinary circumstances in this record for Claimant's failure to file his appeal on time. The UCBR did not have jurisdiction to hear the matter and properly dismissed the appeal as untimely.
Claimant next argues that his constitutional due process rights were violated. Claimant did not raise this issue to the UCBR or in his petition for review, but argues it in his brief. Pennsylvania Rule of Appellate Procedure 1551(a) states in pertinent part: "Review of quasijudicial orders shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit . . . ." Pa.R.A.P. 1551(a). Moreover, where claims that constitutional rights were violated are not raised in a claimant's petition for review, they are waived. Oliver v. Unemployment Comp. Bd. of Review, 29 A.3d 95 (Pa. Cmwlth. 2011). Because Claimant failed to raise this issue to the UCBR and in his petition for review, it is waived and cannot now be decided by this Court.
For the above-stated reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 9th day of April, 2013, the Unemployment Compensation Board of Review's September 14, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge