Opinion
No. 1581 C.D. 2011
04-18-2012
Michelle Precia Jones, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Michelle Precia Jones (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's dismissal of Claimant's appeal as untimely filed from the Unemployment Compensation Service Center's (Service Center) determination under Section 501(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e).
The facts, as initially found by the referee and confirmed by the Board, are as follows:
1. Claimant filed an application for unemployment benefits effective February 6, 2011.
2. On February 22, 2011, the UC Service Center issued a Notice of Determination which found Claimant to be
ineligible for benefits under Section 402(e) of the Pennsylvania Unemployment Compensation Law. The determination notified the Claimant that she had fifteen (15) days from the date of mailing or March 9, 2011 in which to file a timely appeal.Referee's Decision, June 10, 2011, (Decision), Findings of Fact Nos. 1-8 at 1-2.
3. The Claimant's copy of the Notice of Determination was mailed to the Claimant's correct mailing address and there is no indication that it was returned by the postal authorities as being undeliverable.
4. Claimant did not notify the UC Service Center that she would be out of town from February 8, 2011 until the end of April 2011 and then again from April 27, 2011 until May 9, 2011 due to being on tour as a production assistant.
5. Claimant was having family members check her mail and take it into her apartment.
6. At some point, the Claimant's daughter told her that she had received something from the Pennsylvania Department of Labor and Industry, but did not have her daughter open the document or send it to her while she was out of town.
7. Claimant did not file her appeal on or before March 9, 2011, but mailed her appeal via the US Postal Service on May 13, 2011.
8. Claimant was not misinformed or misled as to her need to file a timely appeal of the determination.
The referee determined:
In the present case, the record establishes that the Claimant's copy of her Notice of Determination was mailed to her correct mailing address and there is no indication that it was returned by the postal authorities as being undeliverable. Claimant contends that she was out
of town due to traveling on tour as a production assistant from February 8, 2011 until the end of April 2011 and then again from April 27, 2011 until May 29, 2011. However, the Claimant acknowledged that she did not inform the Service Center that she would be out of town during this time frame. Claimant also acknowledged that while her daughter informed her that she received something from the Pennsylvania Department of Labor and Industry, she did not have her daughter open the envelope or forward it to her while she was on tour. Claimant acknowledged that she mailed her appeal via the US Postal Service on May 13, 2011. The Claimant has not presented any competent evidence to support a finding that there was fraud, a breakdown in the administrative process or non-negligent conduct related to the appeal. Therefore, the Claimant has not established that she filed a timely appeal of the Notice of Determination under Section 501(e) of the Law, and her appeal will be dismissed.Decision at 2.
The Board affirmed.
Claimant contends that the Board erred when it determined that Claimant was ineligible for benefits under Section 501(e) of the Law, 43 P.S. §821(e).
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Section 501(e) of the Law, 43 P.S. §821(e), provides that appeals from determinations contained in any notice required to be furnished by the department must be taken "within fifteen calendar days after such notice was delivered ... or was mailed to ... (claimant's) last known post office address."
This Court has repeatedly and consistently held that the statutory time limit established for the filing of appeals is mandatory. The appeal period may be extended beyond the statutory limit only where, through acts constituting fraud or its equivalent, the compensation authorities have deprived a claimant of the right to appeal. Shimko v. Unemployment Compensation Board of Review, 422 A.2d 726 (Pa. Cmwlth. 1980).
Our courts also allow, in very limited situations, an appeal nunc pro tunc where an appeal is not timely because of non-negligent circumstances, either as they relate to a claimant or his counsel, and the appeal is filed within a short time after the claimant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and the employer is not prejudiced by the delay. UPMC Health Systems v. Unemployment Compensation Board of Review, 852 A.2d 467 (Pa. Cmwlth. 2004).
Claimant does not challenge the Board's essential findings. Here, the Service Center mailed the Notice of Determination to Claimant's acknowledged address on February 22, 2011. Claimant admitted that her daughter informed her that she had received a letter from the Department of Labor and Industry while Claimant was out of town. Claimant did not ask her daughter to open the letter. Claimant did not mail her appeal until May 13, 2011, well after the March 9, 2011, deadline. There was no fraud or breakdown in the administrative process. The Board did not err when it determined the appeal was untimely.
Claimant also contends that the Board erred when it denied benefits on the basis of Section 402(e) of the Law, 43 P.S. §802(e), which is the portion of the Law stating that an unemployment claimant is ineligible for benefits if he committed willful misconduct. The Board did not deny benefits on that basis. Therefore, this Court need not address Claimant's argument on this issue. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 18th day of April, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge