Opinion
No. 876 C.D. 2012
11-29-2012
Robert Birk, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Robert Birk (Claimant) petitions for review of the Order of the Unemployment Compensation Board of Review (Board) that dismissed Claimant's appeal from a decision of an Unemployment Compensation Referee (Referee) as untimely pursuant to Section 502 of the Unemployment Compensation Law (Law). The Board held that dismissal was required because Claimant did not request a hearing on the timeliness of his appeal as mandated by Section 101.61 of the Board's regulations, 34 Pa. Code § 101.61. On appeal, Claimant argues that the Board erred in not scheduling a hearing on the timeliness of Claimant's appeal based solely on Claimant's failure to explicitly ask for a hearing on that issue. Because the Board did not err in dismissing Claimant's appeal based on Section 502 of the Law and the Board's regulations, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Claimant drove luxury vehicles owned by Mears Transportation Group (Mears) from November 2009 until February 12, 2011. Claimant filed a claim for unemployment compensation (UC) benefits, which the Allentown UC Service Center granted. (Referee Decision, Findings of Fact (FOF) ¶ 1.) Mears appealed, arguing that Claimant was an independent contractor who was ineligible for UC benefits under Section 4(l)(2)(B) of the Law. 43 P.S. § 753(l)(2)(B). After a hearing, the Referee found that Claimant was an independent contractor and ineligible for benefits. (Referee's Decision and Order at 2.)
The Referee mailed her decision to Claimant's last known address on February 24, 2012, and there is no indication that the decision was returned as undeliverable. The decision and an accompanying notice informed Claimant that he had fifteen days, or until March 12, 2012, to appeal the decision. The Board received Claimant's appeal (in the form of a letter from counsel dated March 9, 2012) on March 14, 2012, but the envelope bore an illegible postmark. By notice dated March 21, 2012, the Board informed Claimant that his appeal appeared to be untimely. The notice indicated that, if there was a reason Claimant believed his appeal was timely or should be considered timely, Claimant had to send a written request for a hearing on the timeliness of his appeal. In pertinent part, the notice stated:
If you believe that you filed your appeal within the fifteen (15) day period or that it should be deemed timely for other reasons, you must request the Board by letter that a hearing be scheduled to allow opportunity to set forth your reasons as to why you believe your appeal was timely filed. Please mail your letter to the Board at the above letterhead address. Any such hearing involves only the issue of whether the appeal was timely filed. . . .(Letter from Board to Claimant (March 21, 2012), R. Item 13 (emphasis omitted, italics added).) Claimant sent a letter to the Board explaining why his appeal should be considered timely based on the "mailbox rule"; however, Claimant did not request a hearing. (Board's Decision, FOF ¶¶ 1-8; Letter from Claimant to Board (March 26, 2012), R. Item 14.)
Unless the Board receives a reply, specifically requesting a hearing on the timeliness issue, postmarked by April 5, 2012, it will proceed to issue an appropriate order. This may result in the dismissal of your appeal, in which case the referee's decision becomes final and binding on all parties.
The Board found that, because the postmark of Claimant's appeal was illegible, the date the Board received the appeal had to be considered the date the appeal was filed. The Board received the appeal on March 14, 2012, which, unfortunately, was two days after the appeal period expired. The Board held that, pursuant to Section 502 of the Law, it lacked jurisdiction to consider Claimant's appeal and the Referee's decision became final. Moreover, the Board held that Claimant's appeal had to be dismissed in accordance with Section 101.61 of its regulations because, although he offered reasons for why he thought he was entitled to nunc pro tunc relief, Claimant did not request a hearing as required by that regulation. Accordingly, the Board dismissed Claimant's appeal. Claimant now petitions this Court for review.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western & Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant argues that it was within the Board's discretion to order a hearing and, if the Board believed that a hearing was necessary in order to review facts, such as the illegibility of the postmark, it should have "scheduled such a hearing sua sponte." (Claimant's Br. at 4.) Citing, inter alia, Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996) and Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), Claimant asserts that his appeal should have been considered nunc pro tunc because the untimeliness of his appeal was due to non-negligent conduct. Claimant contends that his situation is like that in Roderick v. State Civil Service Commission, 463 A.2d 1261 (Pa. Cmwlth. 1983), wherein we held that the State Civil Service Commission erred in not holding a hearing on an employee's claim that he was entitled to nunc pro tunc relief before denying that relief. Accordingly, Claimant argues that the Board erred in requiring him to expressly request a hearing on the timeliness of his appeal before the Board would order such a hearing.
Section 502 of the Law provides, in relevant part, that a referee's decision "shall be deemed the final decision of the [B]oard, unless an appeal is filed therefrom, within fifteen days after the date of such decision." 43 P.S. § 822. This requirement is jurisdictional, and the failure to file an appeal within fifteen days deprives the Board of jurisdiction to hear the appeal. Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). Section 101.82(b) of the Board's regulations, 34 Pa. Code § 101.82(b), explains how filing dates for appeals sent via United States mail are determined and provides the following:
(b) A party may file a written appeal by any of the following methods:Id. Section 101.61(a) of the Board's regulations addresses untimely appeals and, in pertinent part, states:
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
(a) If an appeal from a decision of the Department or an application for further appeal appears to have been filed beyond the applicable time limit, the tribunal shall advise the appealing party in writing that it appears not to have . . . jurisdiction because of the late filing, and that the appeal or application for further appeal will be dismissed without a hearing unless the appealing party notifies the tribunal in writing . . . that he contends the appeal or application for further appeal was timely filed and that he desires a hearing. If . . .
the appealing party does not request a hearing, the tribunal shall dismiss the appeal or application for further appeal.34 Pa. Code § 101.61(a) (emphasis added).
In Han v. Unemployment Compensation Board of Review, 42 A.3d 1155 (Pa. Cmwlth. 2012), this Court affirmed the Board's dismissal of an untimely appeal because the claimant, who received the same notice from the Board regarding his appeal as Claimant did here, did not expressly request a hearing on the timeliness of his appeal. This Court explained that, in accordance with the plain language of Section 502 of the Law and the Board's regulations, unless a party requests a hearing on the timeliness of an appeal, "the Board is without jurisdiction to further consider the matter under [S]ection 502, and it is precluded from considering the facts underlying the timeliness of [the c]laimant's appeal unless they are adduced at a hearing on that issue." Han, 42 A.3d at 1158 & n.8. Therefore, we concluded that the Board did not err in dismissing the claimant's appeal because his failure to request a hearing on the timeliness of his appeal prevented the Board from considering his claims pursuant to Section 502 of the Law and the Board's regulations. Id.
Here, Claimant filed his appeal by United States mail. The appeal did not include a Form 3817 or certified mail receipt, the postmark on the envelope was illegible, and there was no other postage meter mark on the envelope. Because the filing date could not be determined under subsections (i) or (ii) of Section 101.82(b)(1), subsection (iii) required the filing date of Claimant's appeal be the date the Board received the appeal, March 14, 2012. This was two days after the appeal period expired. In accordance with Section 101.61(a), the Board notified Claimant that his appeal appeared untimely and provided him the opportunity to request that a "hearing be scheduled to allow [him the] opportunity to set forth [his] reasons as to why [he] believe[d his] appeal was timely." (Letter from Board to Claimant (March 21, 2012), R. Item 13.) This notice warned, again pursuant to Section 101.61(a), that "[u]nless the Board receive[d] a reply, specifically requesting a hearing on the timeliness issue, . . . it will proceed to issue an appropriate order. This may result in the dismissal of your appeal." (Letter from Board to Claimant (March 21, 2012), R. Item 13.) Claimant sent a letter explaining why he believed his appeal should be deemed timely based on his interpretation of the "mailbox rule;" however, like the claimant in Han, he did not request that the Board schedule a hearing on the timeliness of his appeal. Section 502 of the Law, Sections 101.61(a) and 101.106 of the regulations, and Han require such a request, and the failure to request a hearing prevents the Board from considering those claims. Han, 42 A.3d at 1157-58. Therefore, the Board did not err in dismissing Claimant's appeal on this basis.
The cases cited by Claimant, Cook, Bass, and Roderick, do not support a different result. Neither Bass, a civil matter, nor Roderick, a civil service matter, involved the Board's regulations, which this Court indicated were unambiguous as to the result of a party's failure to request a hearing under these circumstances. Han, 42 A.3d at 1158 n.8. Moreover, in Cook, a hearing was held at which the claimant was able to present evidence on why the appeal should be deemed timely pursuant to the principles of nunc pro tunc. Cook, 543 Pa. at 385, 671 A.2d at 1132. However, as stated above, Section 101.61(a) provides that a party seeking to establish the timeliness of an appeal is required to request a hearing at which the party can present the reasons for the untimeliness, i.e., evidence that would support an appeal nunc pro tunc. The failure to make this request requires that the Board "shall dismiss the appeal or application for further appeal." 34 Pa. Code § 101.61(a) (emphasis added). Therefore, although the nunc pro tunc principles described in Cook, Bass, and Roderick may have applied had Claimant requested a hearing as required by Section 101.61(a), Claimant did not make that request and, consequently, the Board was compelled by that regulation to dismiss the appeal. Han, 42 A.3d at 1157-58.
Section 101.61(a) was adopted in 1970 and amended in 1978; both preceded the Supreme Court's 1979 decision in Bass and this Court's 1983 decision in Roderick.
Although Claimant argues that Bass presents an analogous fact pattern to the present matter, there are no facts asserted in the record or in any correspondence that describe the facts surrounding the mailing of Claimant's appeal. --------
Accordingly, we are constrained to affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, November 29, 2012, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge