Opinion
No. 808 C.D. 2011
04-04-2012
Aurora I. Chilcote, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Aurora I. Chilcote (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), which affirmed a Referee's decision dismissing Claimant's appeal as untimely pursuant to Section 501(e) of the Unemployment Compensation Law (Law). We now affirm the Board's order.
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 states:
(e) Unless the claimant . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within fifteen calendar days after such notice . . . 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.
Claimant filed a claim for unemployment compensation benefits following the termination of her employment with Bellos Café (Employer) as a manager. On October 19, 2010, the Altoona UC Service Center (Service Center) issued a Notice of Determination (determination), in which it determined that Claimant was ineligible for benefits. (Certified Record (C.R.), Item No. 2.) The notice stated that the last day that Claimant could appeal the determination was November 3, 2010. (Id.) Claimant did not file her appeal until December 27, 2010, after the statutory appeal period had expired. (C.R., Item No. 3.)
A Referee conducted a hearing on February 4, 2011, for the sole purpose of determining whether Claimant's appeal from the determination was timely. (C.R., Item No. 7, at 2.) During the hearing, Claimant testified that she did not know or remember when she originally received the determination, but that she first tried to file an appeal via fax to the Service Center on November 9, 2010. (Id. at 5-6.) She explained that she called the Service Center to see if it had received the fax, but she had to leave a message and wait for the Service Center to return her call. (Id. at 6.) After Claimant had not heard from the Service Center for about two weeks, she called again and was told that the Service Center had never received her notice of appeal. (Id.) Claimant then successfully faxed her appeal to the Service Center on December 27, 2010. (C.R., Item No. 3.) Claimant testified that she did not try to fax her appeal on or before the November 3, 2010, deadline. (C.R., Item No. 7, at 7.)
By decision dated February 4, 2011, the Referee dismissed Claimant's appeal. (C.R., Item No. 8.) Claimant appealed to the Board, and the Board issued the following findings of fact:
1. A [determination] was issued to the claimant on October 19, 2010, finding the claimant not financially eligible for benefits.(C.R., Item No. 10.) The Board concluded that Claimant's appeal was filed by fax on December 27, 2010, which was after the expiration of the statutory appeal period. (Id.) The Board explained that while Claimant attempted to fax her appeal on November 9, 2010, the Service Center did not receive a faxed appeal on that date. (Id.) The Board also stated that even if the Service Center had received an appeal from Claimant on that date, Claimant did not credibly establish good cause for waiting to file her appeal until November 9, 2010. Furthermore, the Board noted that Claimant asserted on appeal that she did not receive the determination until November 9, 2010, but the Board discredited the assertion because Claimant did not testify before the Referee that she received the determination on November 9, 2010. (Id.) Based on the foregoing, the Board dismissed Claimant's appeal as untimely under Section 501(e) of the Law, and it issued an order affirming the Referee's decision. (Id.) Claimant then petitioned for review with this Court.
2. A copy of this determination was mailed to the claimant at her last known post office address on the same date.
3. The claimant received the determination, but does not remember when she received the determination.
4. The notice informed the claimant that November 3, 2010[,] was the last day on which to file an appeal from this determination.
5. The claimant filed her appeal by fax on December 27, 2010.
6. The claimant attempted to file an appeal by fax on November 9, 2010.
7. The Department did not receive a fax appeal from the claimant on November 9, 2010.
8. The claimant was not misinformed or misled by the unemployment compensation authorities concerning her right or the necessity to appeal.
9. The 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.
On appeal, Claimant argues that the Board erred in dismissing her appeal as untimely because (1) the Referee did not properly assist Claimant at the hearing, and (2) the actual date upon which she received the determination is unknown, showing that a breakdown in the administrative process had occurred, which resulted in prejudice to Claimant.
This Court's standard of 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. 2 Pa. C.S. § 704.
As noted above, Section 501(e) of the Law provides that unless a claimant files an appeal with respect to a notice of determination within fifteen (15) calendar days after it was mailed to her last known post office address, such determination will be final and compensation shall be paid or denied in accordance therewith. The fifteen-day time limit is mandatory and subject to strict application. Renda v. Unemployment Comp. Bd. of Review, 837 A.2d 685, 695 (Pa. Cmwlth. 2003), appeal denied, 581 Pa. 685, 863 A.2d 1151 (2004). Failure to timely appeal an administrative agency's action is a jurisdictional defect, and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Sofronski v. Civil Serv. Comm'n, City of Philadelphia, 695 A.2d 921, 924 (Pa. Cmwlth. 1997). Thus, a petitioner carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). As a result, an appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counselor or a third party. Cook v. Unemployment Comp Bd. of Review, 543 Pa. 381, 671 A.2d 1130 (1996).
Claimant first argues that as an unrepresented individual who primarily speaks Spanish, the Referee failed to fulfill her obligation to aid Claimant as required by Coates v. Unemployment Comp. Bd. of Review, 676 A.2d 742 (Pa. Cmwlth. 1996). Claimant contends that the Referee did not give Claimant the significant information necessary to present her case, and as a result, the record does not indicate that Claimant primarily speaks Spanish and requires assistance in filling out forms. Claimant further argues that the Referee did not assist Claimant in determining whether the failure of the Service Center to receive the faxed appeal was the result of extraordinary circumstances or whether the fact that she was primarily Spanish-speaking caused a breakdown in the administrative process.
In that case, this Court stated that "[w]here . . . a party is not represented by counsel, the referee before whom the hearing is being held 'should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of his duties.' 34 Pa. Code § 101.21. The referee has a responsibility to assist a pro se claimant at a hearing so that the facts of the case necessary for a decision may be adequately developed." Coates, 676 A.2d at 744.
Despite these contentions, Claimant failed to raise the issue regarding the Referee's conduct both before the Board and in her petition for review to this Court. "[W]here a Claimant fails to include an issue in his petition for review, but addresses the issue in his brief, this [C]ourt has declined to consider the issue, since it was not raised in the stated objections in the petition for review, nor fairly comprised therein' in accordance with Pa. R.A.P. 1513(a)." Tyler v. Unemployment Comp. Bd. of Review, 591 A.2d 1164, 1168 (Pa. Cmwlth. 1991). Also, Pennsylvania Rule of Appellate Procedure 1551(a) provides, in part, that generally "[n]o question shall be heard or considered by the [C]ourt which was not raised before the government unit," which in this case is the Board. Because Claimant did not properly preserve the issue of whether the Referee acted in accordance with Coates in her petition for review, Claimant's arguments are waived.
Claimant next contends that her testimony regarding the timing between her receipt of the determination and her filing of the appeal was glossed over. Claimant argues that it is not known whether she received the determination within the fifteen-day appeal period and, therefore, the fax sent on November 9, 2010, may have been timely. Thus, Claimant takes the position that there was a breakdown in the administration of the proceedings that prejudiced Claimant.
The Service Center mailed the determination on October 19, 2010. (C.R., Item No. 2.) The determination stated that Claimant's last day to timely file an appeal was November 3, 2010. (Id.) At the hearing before the Referee, Claimant testified that she did not know or remember when she actually received the determination. (C.R., Item No. 7, at 5-6.) Claimant admitted that she made no attempt to file an appeal on or before November 3, 2010. (Id. at 7.) In fact, Claimant did not attempt to file an appeal until November 9, 2010, and did not successfully file an appeal until December 27, 2010. (Id. at 5-6; C.R., Item No. 3.) Moreover, Claimant provided no explanation for the late filing at the hearing other than alluding to her recent move. (C.R., Item No. 7, at 5.) As demonstrated by the evidence of record, Claimant's contention that there was a breakdown in the administrative process resulting in prejudice to Claimant is without merit. The Board, therefore, properly dismissed Claimant's appeal as untimely.
In her appeal to the Board, Claimant asserted that she did not receive the determination until after the November 3, 2010, deadline. (C.R., Item No. 9.) As previously noted, the Board discredited her assertion because she never testified that she received the determination after the deadline had passed. (C.R., Item No. 10.) In an unemployment case, the Board "is the ultimate factfinder and may accept or reject the testimony of any witness, in whole or in part." Greif v. Unemployment Comp. Bd. of Review, 450 A.2d 229, 230 (Pa. Cmwlth. 1982). Thus, the Board did not err in crediting Claimant's testimony that she did not remember when she received the original determination. (Finding of Fact (F.F.) 3.) Claimant also presented this same contention in her petition for review to this Court; however, Claimant testified at the hearing and argues in her brief only that the date she received the determination is unknown. Thus, we reject any suggestion that Claimant received the determination after the deadline to appeal had passed. --------
Accordingly, the order of the Board is affirmed.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 4th day of April, 2012, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge