Opinion
No. 1284 C.D. 2014
03-10-2015
Victor J. Diaz, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Victor J. Diaz (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) dismissing his appeal as untimely from a UC Referee's (Referee) Decision pursuant to Section 502 of the UC Law (Law). On appeal Claimant admits that his appeal was untimely, but argues that his appeal to the Board should be considered nunc pro tunc because the late filing of the appeal was due to non-negligent circumstances beyond his control. Based on the Board's credibility determinations, we must affirm the dismissal.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
The Board notes in its brief "that a denial of a waiver request does not preclude Claimant from filing an additional waiver request with specific financial information included to support an allegation of inability to pay the non-fraud overpayment . . . The Board encourages Claimant to contact his local UC Service Center to file a new request if desired." (Board's Br. at 10 n.9.) We would also encourage Claimant to contact his local UC Service Center.
Claimant filed for and received UC benefits effective February 12, 2012, including Emergency Unemployment Compensation. (Claim Record, R. Item 1.) On July 1, 2013, the UC Service Center issued a Notice of Determination of Overpayment of Benefits to Claimant notifying him that he was not entitled to a total of $19,625 in UC benefits that he had received because a Referee had reversed the UC Service Center's eligibility determination. (Notice of Determination of Overpayment of Benefits, R. Item 2.) Claimant was further notified that the non-fraud overpayment had to be repaid unless he requested and was granted a waiver. (Notice of Determination.) Claimant timely requested a waiver of repayment due to financial hardship. (Claimant's Request for Waiver of Repayment of EUC Overpayment, R. Item 3.) The UC Service Center denied Claimant a waiver on November 27, 2013 because he did not provide sufficient information to permit a determination as to whether the waiver should be granted. (Notice of Determination on Waiver of EUC Overpayment Repayment (Notice of Determination on Waiver), R. Item 4.)
The last day to file a timely appeal of the Notice of Determination on Waiver was December 12, 2013. (Notice of Determination on Waiver.) Claimant, however, did not file his appeal until December 19, 2013. (Claimant's Petition for Appeal from Determination, dated 12/19/13, R. Item 5.) Thereafter, the Referee issued a Decision and Order on February 14, 2014 (Referee February 2014 Decision) dismissing Claimant's appeal as untimely pursuant to Section 501(e) of the Law., (Referee February 2014 Decision, R. Item 9.) The Referee found that "[C]laimant was not misinformed nor in any way misled regarding the right of appeal or the need to appeal." (Referee February 2014 Decision, Finding of Fact ¶ 6.)
43 P.S. § 821(e) (providing, in relevant part, that an appeal from a determination must be filed within fifteen calendar days after the determination is mailed to the claimant's last known post office address).
The certified record shows that a hearing was scheduled before a UC Referee to consider whether Claimant's appeal from the Notice of Determination on Waiver was timely; however, the hearing was continued. (Notice of Hearing, R. Item 7; Notice of Continuance of Hearing, R. Item 7.) The certified record further indicates that a hearing was held on February 3, 2014, but no transcript was produced because the appeal was untimely. (Referee's Hearing, dated 2/3/14 (NO TRANSCRIPT DUE TO UNTIMELY APPEAL), R. Item 8.)
The last day to file an appeal from the Referee's February 2014 Decision and Order was March 3, 2014; however, Claimant's petition for appeal was not filed until March 14, 2014. (Claimant's Petition for Appeal from Referee's Decision/Order with Attachments, R. Item 10.) Upon being notified by the Board that his appeal appeared untimely, Claimant requested and received a hearing before a Referee on the timeliness of his appeal.
During the hearing, Claimant testified that he never received the Referee's February 2014 Decision that was mailed to his last known mailing address; therefore, he called the Referee's office on March 10, 2014 to find out the status of his appeal. (Hr'g Tr. at 1.) Claimant further testified that he only recently became aware that he had a problem with his mail when he realized that he was not receiving the notices that he was expecting to receive from the UC authorities. (Hr'g Tr. at 2.) Claimant testified that he immediately contacted his local post office and took action to change the lock on his mailbox. (Hr'g Tr. at 2.) Claimant testified that he has not had any problems receiving his mail since the lock was changed. (Hr'g Tr. at 2.) Claimant submitted into the evidence the receipts he received from the post office on March 10, 2014 and April 2, 2014 for the cost of changing the lock and receiving new keys. (Hr'g Tr. at 2-3.)
Based on the testimony, the Board made the following relevant findings of fact:
4. Following a hearing on the issue of timeliness, the Referee issued a decision which dismissed the claimant's appeal under Section 501 of the Law.
5. A copy of the Referee's decision was mailed to the claimant at his last known post office address on the same date.
6. The decision was accompanied by notice advising that the interested parties had fifteen (15) days in which to file a valid appeal.
7. The decision mailed to the claimant was not returned by the postal authorities as undeliverable.
8. The claimant's appeal from the Referee's decision, in order to be timely, had to have been filed on or before March 3, 2014.
9. The claimant's appeal was filed on March 14, 2014 ....(Board Decision, Findings of Fact (FOF) ¶¶ 4-10.) The Board acknowledged the mandatory nature of Section 502 of Law and its limited jurisdiction in accepting late appeals except under certain limited exceptions. (Board Decision at 2.) Based on the findings of fact, the Board determined that Claimant "failed to credibly establish proper cause for the late filing of his appeal" and rejected, as not credible, Claimant's testimony that the issues with his mailbox and lock prevented receipt of his mail. (Board Decision at 2.) The Board further found that 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 Decision at 2.) Accordingly, the Board dismissed Claimant's appeal from the Referee's February 2014 Decision as untimely under Section 502 of the Law. (Board Decision at 2.) Claimant now petitions this Court for review of the Board's Order.
10. There is no evidence that the claimant was misinformed or misled by the unemployment compensation authorities regarding his right or the necessity to appeal.
Our review "is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated." Johns v. Unemployment Compensation Board of Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth.), petition for allowance of appeal denied, 97 A.3d 746 (Pa. 2014).
On appeal, Claimant argues that his appellate rights should be restored nunc pro tunc because his late filings were the result of non-negligent conduct and were filed without significant delay once he received the Referee's February 2014 Decision. Claimant does not dispute that his appeal to the Board was untimely. Instead, Claimant argues that his non-receipt of the Referee's February 2014 Decision was due to circumstances beyond his control involving the mail system at his apartment complex; therefore, his untimeliness was non-negligent. Claimant contends that he operated with due diligence when he proactively contacted the Referee's office to determine the status of his appeal after not receiving any notification for several weeks. Claimant asserts that he did not receive a copy of the Referee's February 2014 Decision until March 12, 2014, after he changed his address with the UC authorities and requested another copy of the Decision, by which time the period for appeal had already expired.
Section 502 of the Law provides a party fifteen days to appeal a referee's decision to the Board. 43 P.S. § 822. This statutory time limit is mandatory and the Board does not have the jurisdiction to consider any appeal filed after fifteen days. Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). This Court has acknowledged limited circumstances, however, when an untimely appeal may be considered, but the claimant bears a heavy burden to establish this right. Id. The allowable exceptions for an untimely appeal are limited to cases where the claimant proves "there is fraud or some breakdown in the court's operation," or when there is a "non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal." Bass v. Commonwealth, 401 A.2d 1133, 1135-36 (Pa. 1979). Hessou interpreted the non-negligent standard as conduct being beyond the control of the claimant. Hessou, 942 A.2d at 198. These exceptions are also only meant to apply in extraordinary circumstances where "unforeseeable and unavoidable" events prevented the timely filing of the appeal. Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).
Here, Claimant did not specifically challenge any of the Board's findings of fact on appeal; therefore, they must be accepted by this Court as conclusive. Hessou, 942 A.2d at 198. Claimant also does not dispute that the Referee's Decision was mailed on February 14, 2014. (Hr'g Tr. at 1.) Therefore, this Court must accept the Board's findings that: the Referee's February 2014 Decision was mailed to Claimant's last known address, it advised Claimant of his right to appeal, it was not returned as undeliverable, the last day for a timely appeal was March 3, 2014, and Claimant filed his appeal March 14, 2014. (FOF ¶¶ 5-9.)
Claimant's argument on appeal is that his issues with the mailbox and lock should constitute a non-negligent circumstance that excuses his untimely appeal. However, the Board specifically rejected "as not credible that the claimant had an issue with his [mail]box and the lock on the box receiving his mail." (Board Decision at 2.) It is well-settled that "[t]he Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight." Walsh v. Unemployment Compensation Board of Review, 943 A.2d 363, 368 (Pa. Cmwlth. 2008). Because the Board did not find Claimant credible there was no credible evidence showing non-negligent circumstances beyond Claimant's control that prevented the filing of a timely appeal; therefore, we must affirm the Board's dismissal of Claimant's appeal as untimely pursuant to Section 502 of the Law.
We recognize that the certified record of this case contains a November 20, 2013 Board Order affirming a Referee's decision finding Claimant not eligible for UC benefits pursuant to Section 402(h) of the Law, 43 P.S. § 802(h). (Board Order, R. Item 6.) Therein, the Board addressed a previous late appeal by Claimant finding that Claimant had good cause for the late appeal due to problems Claimant was experiencing receiving his mail. However, the Board also found that "[C]laimant did not have good cause for his non[-]appearance at the hearings on the merits as it resulted" because Claimant provided the Referee with an incorrect phone number. (Board Order.) --------
For the foregoing reasons, the Board's Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 10, 2015, the Order of the Unemployment Compensation Board of Review, entered in the above-captioned matter, is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge