Opinion
No. 2291 C.D. 2014 No. 2292 C.D. 2014
07-23-2015
Lawrence Sterling Garnett, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Lawrence Sterling Garnett (Claimant) petitions for review of the November 19, 2014, orders of the Unemployment Compensation Board of Review (UCBR) that dismissed Claimant's appeals as untimely pursuant to section 502 of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822. Section 502 of the Law provides that an appeal to the UCBR shall be filed within 15 days of a referee's decision.
After his separation from employment with the Pennsylvania Department of Public Welfare (Employer), Claimant applied for unemployment compensation benefits. On October 28, 2013, the Department of Labor and Industry (Department) determined that Claimant did not engage in willful misconduct under section 402(e) of the Law, 43 P.S. §802(e), and was eligible for benefits. Also on October 28, 2013, the Department issued a decision granting Claimant's application for emergency unemployment compensation (EUC) benefits under the Emergency Unemployment Compensation Act of 2008. Employer appealed both determinations on November 12, 2013.
Title IV of the Supplemental Appropriations Act of 2008, Act of June 30, 2008, P.L. 110-252.
On January 3, 2014, a referee conducted a hearing, at which Claimant and Employer appeared and testified, concerning Claimant's eligibility for benefits under section 402(e) of the Law. On January 24, 2014, the referee issued a decision denying Claimant benefits. The decision listed the final date of appeal as February 10, 2014.
On February 21, 2014, a separate referee held a hearing, at which only Employer appeared and testified, concerning Claimant's eligibility for EUC benefits. The referee had denied Claimant's February 20, 2014, request for a continuance. On March 5, 2014, the referee issued a decision denying Claimant EUC benefits. The decision listed the final date of appeal as March 20, 2014. Claimant filed a request to reopen the hearing on May 30, 2014.
On June 6, 2014, Claimant appealed both decisions to the UCBR. On June 30, 2014, the UCBR remanded both matters for a hearing on the timeliness of Claimant's appeals. The hearing occurred on August 29, 2014, at which only Claimant's counsel appeared. Counsel stated that Claimant suffers from post-traumatic stress disorder (PTSD) and introduced documentation from the Department of Veteran Affairs. Counsel also stated that during the underlying proceedings, Claimant had landlord-tenant issues, had problems obtaining medical care, and lacked legal representation. (N.T., 8/29/14, at 4.)
The UCBR issued two decisions. In both decisions, the UCBR found that the referees' decisions had been mailed to Claimant's last known address and not returned. Further, the referees' decisions had advised Claimant that he had 15 days to appeal, but Claimant failed to timely appeal. Moreover, Claimant was not misled by unemployment compensation authorities regarding the necessity to appeal. The UCBR also found that in 2011, Claimant was 30% disabled due to PTSD. As of September 22, 2013, Claimant was 100% disabled due to PTSD. (UCBR's Decision Nos. B-571938 and B-571939, 11/19/14, Findings of Fact, Nos. 5-12.)
The UCBR dismissed Claimant's appeals as untimely pursuant to section 502 of the Law, 43 P.S. §822. Claimant petitioned this court for review, and we consolidated the cases by order dated February 23, 2015.
In its decisions, the UCBR also noted "that a person who is 100 percent disabled would have his presumption of availability to work rebutted under [s]ection 401(d)(1) [of the Law, 43 P.S. §801(d)(1),] as there would appear to be no realistic attachment to the job market precluding any award of benefits." (UCBR's Decision Nos. B-571938 and B-571939, 11/19/14, at 2.)
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact are unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Before this court, Claimant argues that he met his burden of proving that his late appeals were due to extraordinary circumstances. We disagree.
"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." Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appeal nunc pro tunc will only be allowed where the late filing is caused by extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996).
In his brief to this court, Claimant contends that his PTSD prevented him from filing timely appeals. Claimant, however, did not appear at the remand hearing to testify as to the effect that his PTSD had on his ability to timely file his appeals. Claimant's PTSD diagnosis, without more, does not amount to non-negligent conduct excusing Claimant's late filing. Therefore, Claimant failed to prove that his untimely appeals were caused by extraordinary circumstances.
Claimant's only testimony as to the effect that his PTSD had on him was at the January 3, 2014, referee hearing. Claimant testified that some of the medication he took for PTSD caused anxiety and, as a result, Claimant was unable to sleep. Claimant then took prescribed sleeping pills, which caused him to oversleep. (N.T., 1/3/14, at 15.)
Counsel's statements are not evidence. See Babcock & Wilcox v. Workmen's Compensation Appeal Board (Clark), 601 A.2d 869, 870-71 (Pa. Cmwlth. 1992). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 23rd day of July, 2015, we hereby affirm the November 19, 2014, orders of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge