Opinion
No. 1891 C.D. 2012
04-29-2013
Farchien Chen, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Farchien Chen (Claimant) petitions pro se for review of an order of the Unemployment Compensation Board of Review (Board) dismissing his appeal because it was not filed within 15 days after the denial of benefits as required by Section 501(e) of the Unemployment Compensation Law (Law). Because we find no error in the Board's decision, 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:
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. (Emphasis added).If an appeal is not filed within 15 days of mailing, the determination becomes final and the Board is without jurisdiction to consider the matter. Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009).
In a notice of final determination dated May 2, 2011, the Altoona Unemployment Compensation Service Center (Service Center) denied Claimant's application for emergency unemployment benefits because he was financially ineligible. A copy of the notice was mailed that same date to Claimant at his last known mailing address. This notice informed Claimant that the last day on which he could file an appeal was May 17, 2011, and included appeal instructions. Claimant attempted to file his appeal by email on May 17, 2011, but he used the wrong email address. Claimant called the Department of Labor and Industry (Department) on June 14, 2011, at which time he was informed that his email was not received, so he sent his appeal by fax the same day. He appealed the denial of benefits.
The correct email address for appeals is L&I-UC-Appeals@state.pa.us, but Claimant used L&I-UC_Appeals@state.pa.us. (Board's Decision and Order dated September 7, 2012, at 2.)
Before the Referee, Claimant testified that he emailed his appeal after speaking on the phone with a Service Center employee and, when he called two weeks later, he was told that the Service Center did not receive his appeal and he was told to fax it, which he did shortly thereafter. When asked by the Referee whether he read the appeal instructions which provide that "the appellant bears the responsibility that ... it may not be received," (Hearing Transcript dated August 25, 2011, at 7), Claimant replied that he had emailed the Service Center previously without a problem, so he thought that the email would be received this time as well.
The Referee dismissed Claimant's appeal as untimely, finding that "[C]laimant was not misinformed nor in any way misled regarding the right of appeal or the need to appeal." (Referee's Decision and Order dated August 25, 2011, at 1.) Claimant appealed to the Board, which affirmed the Referee's decision, noting that "[C]laimant accepted the risk of non-receipt by waiting until the final day to file the appeal and filing it by email." (Board's Decision and Order dated October 21, 2011, at 1.)
Claimant appealed to this Court and we remanded for the Board to reconsider its legal conclusions in light of our decision in Bennett v. Unemployment Compensation Board of Review, 33 A.3d 133 (Pa. Cmwlth. 2011), which required findings to be made on whether the appeal was taken even though no email was noted on the Board's records. On remand, the Board found that Claimant used the wrong email address for his appeal and that the appeal was, therefore, not received by the Department. It further found that he called the Department on June 14, 2011, and filed his appeal by fax the same date after learning that his email was not received. Finally, the Board found that "[t]he filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or by non-negligent conduct." (Board's Decision and Order dated September 7, 2012, at 2.) The Board, therefore, affirmed the Referee's decision, reasoning that the time limit of Section 501(e), 43 P.S. §821(e), is mandatory and the Board could not allow the appeal. This appeal followed.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Shrum v. Unemployment Compensation Board of Review, 690 A.2d 796, 799 n.3 (Pa. Cmwlth.), appeal denied, 548 Pa. 663, 698 A.2d 69 (1997).
On appeal, Claimant contends that in addition to his wrongly-addressed email, he called and faxed a form to the Service Center on May 17, 2011, and called the Service Center again three days later, and supports this with an email he sent to a law firm detailing his communications with the Service Center. Because he made this additional contact with the Service Center on the final day on which he could appeal, Claimant seems to argue that the Board "misunderstood and misconstrued one email" in determining that Claimant's appeal was untimely.
The 15-day time limit set forth in Section 501(e) of the Law is mandatory and subject to strict application. Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996). However, a nunc pro tunc appeal may be permitted in extraordinary circumstances involving fraud, administrative breakdown or non-negligent conduct either by a third party or by the Claimant. Mountain Home Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). Section 101.82 of the Department's regulations, which controls email appeals, provides:
A party filing by electronic transmission shall comply with Department instructions concerning format. A party filing an appeal by electronic transmission is responsible for using
the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.34 Pa. Code §101.82(b)(4) (emphasis added). See also Roman-Hutchinson, 972 A.2d at 1289 (holding that a claimant assumed the risk of an untimely filing when appeal was filed by email and sent to the wrong email address).
Even if Claimant thought that he timely appealed and made other contact with the Service Center on the day that he emailed the appeal to the wrong address, the fact remains that the appeal was not timely received. The fact that he spoke to someone at the Service Center telling that person that he was appealing does not perfect the appeal. Because the regulation clearly provides that the risk of an untimely filing is on a claimant, and we determined in Roman-Hutchinson that this risk extends to an improperly addressed email, Claimant's argument fails.
While this matter was remanded to the Board for reconsideration in light of our decision in Bennett, this case and the arguments presented by Claimant mimic those in Roman-Hutchinson. In Bennett, we noted that:
On substance, the claimant in Roman-Hutchinson on appeal to this Court essentially conceded that the Board did not receive the earlier e-mail. Instead, she attempted to argue that the appeal was effective upon sending the e-mail and that any administrative breakdown that caused the Board not to receive the e-mail should not be attributed to her. Claimant in this case does not make those arguments. Instead, Claimant here ... attempted to establish by evidence at a hearing that the Board did, in fact, receive the earlier filed appeal and received it before the appeal deadline. For these reasons, Roman-Hutchinson does not control our disposition of this appeal.
Accordingly, we affirm the decision of the Board.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 29th day of April, 2013, the order of the Unemployment Compensation Board of Review, dated September 7, 2012, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Bennett, 33 A.3d at 139. Here, Claimant testified that he had previously emailed the Service Center successfully, so he thought that this instance would be the same. He did not deny that he entered the wrong email address and he attached the wrongly-addressed email to his brief. Thus, Claimant does not suggest that the Board actually received the email, and this case is, therefore, distinguishable from Bennett, and Roman-Hutchinson applies.