Opinion
No. 2164 C.D. 2011
05-22-2012
Walter Goins, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Walter Goins (Claimant) petitions for review of the October 20, 2011 order of the Unemployment Compensation Board of Review (Board) dismissing his appeal of a denial of benefits as untimely pursuant to Section 502 of the Unemployment Compensation Law. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Claimant was terminated from his job as a material handler for the Department of Defense, Defense Logistics Agency, for unauthorized possession of government property, after security personnel found an optical rifle sight in his lunch bag as he was leaving work. (Record Item (R. Item) 10, Referee's Decision at 1-2 and Findings of Fact (F.F.) ¶¶1-6; R. Item 3, December 21, 2010 Termination Memorandum.) The Unemployment Compensation Service Center determined that Claimant was ineligible for benefits, and Claimant, acting pro se, timely appealed that determination. Following a hearing, the Referee issued a decision on June 22, 2011 finding that Claimant was ineligible for benefits under Section 402(e) of the Unemployment Compensation Law, 43 P.S. § 802(e), because he was discharged for actions that constitute willful misconduct. (R. Item 10, Referee's Decision at 2.)
The Referee's decision was mailed to Claimant on June 22, 2011 and included specific notice advising him both that any appeal had to be filed within fifteen days of that date and that "[t]he last date to file an appeal to this decision is 7/7/2011." (R. Item 13, Board Decision Findings of Fact (F.F.) ¶¶1-5; R. Item 10, Referee's Decision at 2.) Claimant did not file any appeal from the Referee's decision within that appeal period. On August 22, 2011, counsel appeared for Claimant and filed an appeal of the Referee's June 22, 2011 decision. (R. Item 13, Board Decision at 1-2 and F.F. ¶6; R. Item 11, Claimant's Appeal of Referee's Decision.) Counsel's appeal letter was accompanied by a photocopy of an envelope from the Unemployment Compensation Board of Review Referee Office bearing a postage meter date of August 11, 2011, and stated: "Attached is a copy of the envelope used to deliver the order postmarked 8/11/2011 submitted as evidence that this appeal is timely." (R. Item 11, Claimant's Appeal of Referee's Decision.) No affidavit or statement from Claimant was submitted concerning when or how he received the Referee's decision or supporting counsel's assertion that the August 11, 2011 envelope enclosed the Referee's decision or was the first mailing of the Referee's decision to Claimant. The appeal letter contained no request for a hearing on the timeliness of the appeal or request for an opportunity to submit any further evidence on the timeliness of the appeal. (R. Item 11, Claimant's Appeal of Referee's Decision.)
On August 30, 2011, the Board sent a letter to Claimant and his counsel, notifying Claimant that the appeal appeared to be untimely, but giving Claimant an opportunity to request a hearing on this issue at which he could present his reasons and evidence for contending that the appeal was timely or should be treated as timely. (R. Item 13, Board Decision F.F. ¶7; R. Item 12, Board Letter of August 30, 2011.) This letter specifically advised Claimant and his counsel:
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. . . .(R. Item 12, Board Letter of August 30, 2011) (emphasis in original). Claimant filed no response to this letter and did not make any request to the Board for a hearing on the timeliness of the appeal. (R. Item 13, Board Decision F.F. ¶8.) There is also no evidence in the record that Claimant or his counsel made any inquiry to the Board concerning the appeal or any attempt to obtain an opportunity to introduce evidence that the appeal was timely.
Unless the Board receives a reply, specifically requesting a hearing on the timeliness issue, postmarked by September 14 , 2011 , 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.
On October 20, 2011, the Board issued its decision and order finding that the Referee's decision was mailed to Claimant on June 22, 2011 and, accordingly, dismissing Claimant's appeal as untimely. (R. Item 13, Board Decision at 2 and F.F. ¶¶1-2.) The Board's decision and order, in addition to advising Claimant of his right to appeal to this Court by petition for review, advised Claimant that he could request reconsideration by the Board. (R. Item 13, Board Decision at 3.) Claimant filed no request for reconsideration of the Board's decision and order and made no attempt to bring any evidence to the Board's attention that he did not receive the Board's letter of August 30, 2011. On November 21, 2011, Claimant filed the instant petition for review appealing the Board's dismissal of his appeal to this Court.
Our review is limited to determining whether the Board's adjudication is in violation of constitutional rights, whether an error of law was committed, or whether the factual findings are supported by substantial evidence. 2 Pa.C.S. § 704; Dull v. Unemployment Comp. Bd. of Review, 955 A.2d 1077, 1079 n.2 (Pa. Cmwlth. 2008); Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 197 n.3 (Pa. Cmwlth. 2008).
Any appeal to the Board from a referee's decision must be filed within fifteen days of the date that the referee's decision was mailed. 43 P.S. § 822; 34 Pa. Code § 101.82(a); 34 Pa. Code § 101.102; Dull v. Unemployment Compensation Board of Review, 955 A.2d 1077, 1078 (Pa. Cmwlth. 2008); Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). This fifteen-day time limit is mandatory. Dull, 955 A.2d at 1079; Hessou, 942 A.2d at 197-98. Failure to file an appeal within fifteen days is a jurisdictional defect that bars the Board from considering the merits of any claim of error in the referee's decision, unless the appellant proves that the delay in the appeal was due to extraordinary circumstances, such as a breakdown in the administrative process or circumstances beyond appellant's control which prevented timely filing of the appeal. Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2010); Hessou, 942 A.2d at 197-98; Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235, 1237-38 (Pa. Cmwlth. 1993).
The Board properly dismissed Claimant's August 22, 2011 appeal of the Referee's June 22, 2011 decision as untimely. The Referee's decision indicates that it was mailed to Claimant on June 22, 2011 and that it was mailed to Claimant's correct address, and the Board found no evidence that it had been returned by the postal authorities as undeliverable. That was sufficient to prove that the appeal was untimely, absent evidence to the contrary showing that the decision was in fact mailed on a later date or that it was not delivered. Dull, 955 A.2d at 1079; Ferraro v. Unemployment Compensation Board of Review, 464 A.2d 697, 698 (Pa. Cmwlth. 1983); Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140-41 (Pa. Cmwlth. 1981).
It was, therefore, Claimant's burden to show that his facially untimely appeal was in fact filed within fifteen days of the mailing of the Referee's decision or that extraordinary circumstances excused the late filing. Dull, 955 A.2d at 1079; Hessou, 942 A.2d at 198; Ferraro, 464 A.2d at 698. "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, 942 A.2d at 198. Claimant failed to meet that burden. The only evidence that Claimant submitted to the Board consisted of an unauthenticated copy of a blank August 11, 2011-postmarked envelope from the Referee Office. That did not show that the appeal was timely or that the appeal should be allowed as timely absent evidence that this envelope was the envelope in which the Referee's decision was mailed to Claimant. Claimant provided to the Board no competent evidence, such as testimony or even an affidavit, to show that this envelope enclosed the Referee's decision and that it was the initial mailing of that decision to Claimant, as opposed to some other communication or a resending of the decision in response to a request. Nor did Claimant provide to the Board any testimony or affidavit that he did not receive the Referee's decision in the mail before August 11, 2011.
Moreover, Claimant was required to request a hearing to show that his appeal was timely or that extraordinary circumstances excused the untimeliness if he wished to avoid dismissal of his appeal. 34 Pa. Code § 101.61(a). The Board's regulations provide:
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 a 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 within the succeeding 15 days from the date of such notice, that he contends the appeal or application for further appeal was timely filed and that he desires a hearing. If no reply from the appealing party is received within the 15-day period, or 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). The Board on August 30, 2011 sent written notice to both Claimant and his lawyer at their correct addresses advising that Claimant was required to request a hearing on the timeliness of his appeal by September 14, 2011. (R. Item 12, Board Letter of August 30, 2011). Claimant neither replied to this letter nor requested any hearing or opportunity to submit evidence.
Claimant argues that his appeal should not have been dismissed because the Referee's decision allegedly was not sent to him until August 11, 2011, less than fifteen days before his appeal, and because, allegedly, neither he nor his counsel received the Board's August 30, 2011 letter notifying Claimant that he was required to request a hearing.
The flaw in these arguments is that they are unsupported by anything in the record. The support Claimant asserts for these arguments consists of affidavits attached to his brief that were sworn to after the petition for review was filed in this Court and were never presented to the Board. (Petitioner's Amended Brief at 9 & Exhibits B & C thereto.) Those affidavits are not properly before us and cannot be considered by the Court. Bennett v. Unemployment Compensation Board of Review, 33 A.3d 133, 134 n.1 (Pa. Cmwlth. 2011) (en banc); Pennsylvania Turnpike Commission, 991 A.2d at 974-75; Cruz v. Unemployment Compensation Board of Review, 531 A.2d 1178, 1179 (Pa. Cmwlth. 1987). "This Court may not consider any evidence that is not part of the certified record on appeal." Pennsylvania Turnpike Commission, 991 A.2d at 974.
Neither the Board's dismissal of Claimant's appeal nor this Court's rejection of Claimant's attempt to introduce evidence outside the record violates Claimant's due process rights. Even if neither Claimant nor his counsel received the Board's August 30, 2011 letter, Claimant's counsel was aware that the appeal was facially untimely. (R. Item 11, Claimant's Appeal of Referee's Decision.) Claimant and his counsel were, therefore, on notice that the appeal was subject to dismissal if Claimant did not submit sufficient evidence of timeliness. Nothing prevented Claimant from requesting a hearing to show timeliness of the appeal or from seeking to submit evidence to the Board. Claimant did not merely fail to meet the Board's deadline in its letter; he failed to make any attempt, in the nearly two months before the Board's dismissal of his appeal, to meet his burden to demonstrate that his appeal should be allowed as timely.
Moreover, Claimant could have brought his contention and evidence that he and his counsel did not receive the Board's letter before the Board by request for reconsideration. A party aggrieved by a decision of the Board may request reconsideration by the Board, including an opportunity to offer additional evidence, within fifteen days of the Board's decision. 34 Pa. Code § 101.111. There is no contention that Claimant and his counsel failed to timely receive the Board's October 20, 2011 decision dismissing Claimant's appeal, and the October 20, 2011 dismissal specifically advised Claimant of his right to seek reconsideration for "good cause," including presentation of new evidence where he "could not have presented the evidence at an earlier stage." (R. Item 13, Board Decision at 3.)
Because, on the record before us, Claimant's appeal was untimely and no violation of Claimant's constitutional rights has been shown, we affirm the Board's dismissal of Claimant's appeal from the decision of the Referee in this matter.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of May, 2012, the order of the Unemployment Compensation Board of Review in the above-matter is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE BROBSON
I respectfully dissent. Rather than affirm the Unemployment Compensation Board of Review (Board), I would reverse and remand for a hearing on the question of whether the appeal from the Referee's decision was timely.
On August 22, 2011, counsel for Walter Goins (Claimant) filed an appeal from the Referee's decision. (Certified Record (C.R.) #11.) Claimant's counsel anticipated that the timeliness of the appeal might become an issue, because the Referee's decision was dated June 22, 2011. Thus, he expressly included in the written appeal document his contention that the appeal was, in fact and in law, timely. In addition, he attached to the appeal document a photocopy of an envelope with a postmark of August 11, 2011. He specifically contended that the attachment was a photocopy of the envelope used to deliver the Referee's decision to Claimant. Based on the postmark, Claimant's counsel contended that the appeal, filed within fifteen (15) days of the date of mailing of the Referee's decision, was timely under Section 502 of the Unemployment Compensation Law.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822
Unlike the majority, I would hold that this letter from Claimant's counsel was sufficient to put the Board on notice that Claimant "contends the appeal . . . was timely filed and that he desires a hearing." 34 Pa. Code § 101.61(a).
The majority reaches the contrary conclusion, noting that Claimant's counsel did not submit with his appeal to the Board an "affidavit or other statement from Claimant . . . concerning when or how he received the Referee's decision or supporting counsel's assertion that the August 11, 2011 envelope enclosed the Referee's decision or was the first mailing of the Referee's decision to Claimant." (Maj. Op. at 2.) Later, the majority refers to the photocopied envelope accompanying Claimant's appeal as an "unauthenticated copy," unaccompanied by "evidence that this envelope was the envelope in which the Referee's decision was mailed to Claimant." (Id. at 5.) All that is necessary under the regulation (34 Pa. Code § 101.61(a)), however, to trigger a hearing on timeliness is a "writing," contending that the appeal is timely and expressing a desire for a hearing. There is no requirement that the claimant, in that writing, prove with evidence that the appeal was timely. The appeal by Claimant's counsel, filed on August 22, 2011, satisfied the minimum requirements of the regulation. --------
Pursuant to the regulation, the Board sent a letter on August 30, 2011, directing Claimant to submit a written request for a hearing by September 15, 2011. It appears that Claimant did not respond to that letter. I do not believe, however, that it was appropriate for the Board to dismiss Claimant's appeal as untimely based on that failure to respond. As noted above, Claimant had already made the written request for a hearing on the timeliness of the appeal eight (8) days earlier, on August 22, 2011. When the Board sent its August 30th letter, the Board was clearly aware of Claimant's position that his appeal was, in fact and in law, timely notwithstanding the date of the Referee's decision. And while I do not fault the Board for following the regulation and sending the August 30th letter, I believe that the Board erred in dismissing the appeal based on a failure of Claimant to respond to that letter under these circumstances. "It is clear that this Act is remedial in nature and 'its benefits and objectives shall not be frittered away by slavish adherence to technical and artificial rules.'" Unemployment Comp. Bd. of Review v. Jolliffe, 474 Pa. 584, 586, 379 A.2d 109, 109 (Pa. 1977) (quoting Baigis Unemployment Comp. Case, 160 Pa. Super. 379, 51 A.2d 518 (1947)).
/s/_________
P. KEVIN BROBSON, Judge