Opinion
No. 1566 C.D. 2011 No. 1567 C.D. 2011 No. 1568 C.D. 2011 No. 1569 C.D. 2011
06-04-2012
Brian P. Lord, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Brian P. Lord (Claimant) petitions for review of four orders of the Unemployment Compensation Board of Review (Board), all dated July 22, 2011, affirming four referee's decisions to dismiss as untimely Claimant's appeal of notices of determination issued by the Department of Labor and Industry (Department) indicating fraud overpayments and assessing penalty weeks against Claimant. We affirm.
On July 22, 2009, Claimant's employment with Verizon Communications (Employer) was terminated. Claimant applied for and was awarded unemployment compensation benefits by the local service center. When those benefits were exhausted, Claimant successfully applied for and received additional benefits under tiers 1, 2, and 3 of the Emergency Unemployment Compensation Act of 2008. On November 1, 2010, the Department issued a new notice of determination finding that Claimant had been discharged for violating Employer's absenteeism and/or tardiness policy," and, therefore, was ineligible for benefits under section 402(e) of the Unemployment Compensation Law (Law). (Reproduced Record (R.R.) at 6a.) The last day for Claimant to appeal the notice was November 16, 2010.
Title IV of the Supplemental Emergency Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323, Section 4001, 26 U.S.C. §3304.
It is unclear from the record what prompted the Department to issue a new notice of determination.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e) (stating that an employee is ineligible for compensation for any week in which his unemployment is due to discharge from work for willful misconduct connected with his work).
Based on the November 1, 2010, notice of determination, the Department issued two notices of penalty week determinations assessing 28 and 40 penalty weeks respectively. These were dated November 2, 2010, and the last day for Claimant to appeal was November 17, 2010. On November 2, 2010, the Department also issued four separate notices of determination of overpayment of benefits in the amounts of $14,443.00; $21,204.00; $650.00; and $950.00. The last day to appeal these notices was also November 17, 2010.
According to Claimant, he prepared an appeal from the November 1, 2010, notice of determination and mailed it to the correct address on November 8, 2010. However, the Department did not receive the appeal until Claimant faxed a copy of it on January 12, 2011, well after the fifteen-day appeal period had expired.
The record indicates that Claimant faxed one petition for appeal to the Department on January 12, 2011. The Department appears to have treated this document as an appeal from all relevant notices sent to Claimant and consolidated the four different cases for a May 27, 2011, hearing before a referee on the sole issue of whether Claimant's appeal was timely under section 501(e) of the Law, 43 P.S. §821(e).
Claimant also mailed a copy of the same petition for appeal in an envelope postmarked January 13, 2011, which the Department has stamped as —received" on January 31, 2011.
Employer did not appear at the May 27, 2011, hearing. Claimant testified that he filed his appeal by placing it in a mailbox on November 8, 2010. (Notes of Testimony (N.T.) at 4-5.) He further testified that he telephoned the service center twice to ask about the status of his appeal and each time was told that the Department had no record of it. (N.T. at 5.) According to Claimant, he faxed a copy of his appeal to the service center on January 12, 2011, as suggested by a Department employee who took his second call. (Id.) In addition, Claimant offered the referee a sworn affidavit stating when he mailed his appeal, the address to which it was sent, and the mailbox in which he placed it. (Id.)
On May 31, 2011, the referee dismissed Claimant's appeal as untimely, issuing four separate decisions and orders. The Board affirmed all four decisions, and Claimant petitions for review of the Board's orders. This Court consolidated Claimant's petitions for review by an order dated September 23, 2011.
On appeal to this Court, Claimant asserts that the Board's decision to affirm the referee should be reversed because his conduct was non-negligent and the untimeliness of his appeal was due to circumstances beyond his control. We disagree.
Our scope of review is limited to determining whether constitutional rights were violated, an error of law was committed, or findings of fact were unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Claimant also asserts that the referee refused to accept his sworn affidavit and that doing so was an error of law. However, we consider this argument to be moot, as the certified record reflects that the referee marked the affidavit exhibit C-1 and entered it into the record as evidenced below:
R. [Referee] Okay. Is there any additional testimony you wish to offer as to why your appeal should be considered a timely filed appeal?
C. [Claimant] That's pretty much it. I have a - I did an Affidavit with everything, with the dates and everything else, and the mailbox that I put it in, and everything else.
R. Now this is basically an Affidavit based on the same testimony you just provided?
C. Yeah. Yeah. Just, you know . . .
R. Okay.
C. ...Just so it's on paper, just stating the facts and everything.
R. All right. Well, this document is being marked as C-1. And C-1 is entered into the record.
The fifteen-day time period to appeal unemployment compensation determinations is mandatory and must be strictly applied. Renda v. Unemployment Compensation Board of Review, 837 A.2d 685 (Pa. Cmwlth. 2003). If an appeal from an unemployment compensation determination is not filed within fifteen days of the date the determination was mailed, the determination becomes final and the Board does not have jurisdiction to address the merits of the appeal. Id.
The Board's regulations at 34 Pa. Code §101.82 provide the means for determining the date on which an appeal was filed. Pursuant to 34 Pa. Code. §101.82(b)(1), the filing date of an appeal sent via the United States Postal Service, is determined to be:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.Appeals can also be filed via common carrier, fax, other electronic communication, or personal delivery to a workforce investment office of the Board. 34 Pa. Code §101.82(b)(2)-(5).
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
The date of an appeal filed via fax transmission is considered to be:
(A) The date of receipt imprinted by the Department, the workforce investment office or the Board's fax machine.34 Pa. Code §101.82(b)(3).
(B) If the Department, the workforce investment office or the Board's fax machine does not imprint a legible date, the date of transmission imprinted on the faxed appeal by the sender's fax machine.
(C) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal.
Here, the Department never received the appeal Claimant alleges he mailed; thus, the record contains no postmark, certificate of mailing, certified mail receipt, or postage meter mark to date the appeal. The only date of filing discernible under the regulations is January 12, 2011, the date the Department received Claimant's faxed copy of his appeal. This date is well after the fifteen-day appeal period expired, and, therefore, there is no question that the appeal was untimely.
Claimant relies on Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) and Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996) to support his argument that his appeal should be accepted nunc pro tunc.
In Bass, a secretary for the attorney who was to file an appeal from this Court to our Supreme Court fell ill on the day she was supposed to take the appeal to the courthouse. She left work early and was out of the office all of the next week, requiring treatment by a physician. Upon her return to the office, she saw that the appeal had not been filed, immediately took steps to correct the situation, and filed the appeal one day late. Our Supreme Court held that under such circumstances, where there was 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," the appellant's petition to file the appeal nunc pro tunc ( now for then") would be granted. Id., 485 Pa. at 260, 401 A.2d at 1135-36. Bass was not an unemployment case; rather, it was a lawsuit against prison officials filed by a woman whose husband was murdered by a furloughed prisoner.
In Cook, an unemployment claimant's appeal was due on May 8, 1992. Cook had an appointment with an attorney scheduled for May 5, but on May 3, he collapsed and was hospitalized until May 9. His appeal was filed one day late, on May 9. The referee dismissed the appeal as untimely. The Board and this Court both affirmed, reasoning that Bass allowed a nunc pro tunc appeal only where the delay was caused by non-negligent conduct of the appellant's lawyer or his staff. However, our Supreme Court reversed, expanding its holding in Bass to unemployment appeals and to instances involving non-negligent conduct by the appellant. The Court held that:
where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or [appellant's] counsel, and the appeal is filed within a short time after the appellant or [appellant's] counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc.Id., 543 Pa. at 384-85, 671 A.2d at 1131.
Claimant is correct that the Board may accept an untimely appeal in limited circumstances. See Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). However, 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." Id. at 198. This heavy burden may be satisfied by showing that: (1) the Department engaged in fraudulent behavior or manifestly wrongful or negligent conduct;" or (2) the appellant's conduct was non-negligent but circumstances beyond the appellant's control caused the appeal to be filed late. Id.
Claimant does not suggest that the Department engaged in fraudulent, wrongful, or negligent conduct. Rather, he asserts that his appeal should be accepted nunc pro tunc because his own conduct was non-negligent and circumstances beyond his control—the Post Office's alleged failure to deliver the appeal—caused his appeal to be untimely. In support of this argument, Claimant directs our attention to his testimony that he placed his appeal in a mailbox on November 8, 2010. Unfortunately, even if the Board were to accept that testimony as fact, the appeal cannot be considered filed as of that date because the Board's regulations do not allow for the placing of an appeal in the mail to be considered the initiation of the appeal. Instead, the date of an appeal filed by United States mail must be established by postmark, certificate of mailing, certified mail receipt, postage meter mark, or the date the Department receives it. 34 Pa. Code §101.82. Thus, under 34 Pa. Code §101.82, the only possible date of filing established is the date the fax transmission was received.
We disagree with Claimant that Cook is dispositive here. In Cook, there was no dispute as to when the appeal was filed. Instead, the issue was whether the claimant, given that he was hospitalized, should be allowed to file his appeal nunc pro tunc. Here, unlike in Cook, there is no identifiable or provable intervening event that rendered Claimant unable to file his appeal on time. The only question is what date the appeal is deemed to have been filed. Based on the evidence of record, that date is January 12, 2011.
Although we are sympathetic to Claimant, we are bound by the Law and the Department's regulations. Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 4th day of June, 2012, the July 22, 2011 orders of the Unemployment Compensation Board of Review are hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
(N.T. at 5.)