Opinion
No. 258 C.D. 2012
03-18-2013
Jeffrey I. Mandel, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Jeffrey I. Mandel (Claimant) petitions for review of the decision and order of the Unemployment Compensation Board of Review (Board), holding that he was ineligible for unemployment compensation benefits under Section 1002(11) of the Unemployment Compensation Law, which excludes from compensable employment "positions which, under or pursuant to the laws of this Commonwealth, are designated as ... a major nontenured policymaking or advisory position." The Board's order reversed the Referee's decision in this matter, which had held that Claimant's job was not a designated major nontenured policymaking or advisory position and that he was eligible for benefits. Because the Board lacked jurisdiction to hear Claimant's employer's late appeal filed more than two months after the employer learned that Claimant had been granted benefits, we vacate the Board's order. Even if the Board were held to have jurisdiction, however, reversal would be required, because there is no evidence that Claimant's position was designated as a major nontenured policymaking or advisory position.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, § 1002(11), added by the Act of September 27, 1971, P.L. 460, No. 108, § 20, as amended, 43 P.S. § 892(11).
Claimant was employed by the Commonwealth Department of General Services (Employer) from 2005 until March 22, 2011. (Record Item (R. Item) 8, Transcript of June 7, 2011 Referee Hearing (6/7/11 H.T.) at 4 & Claimant Ex. 1.) Claimant was initially hired by Employer as an Associate Commodity Manager and was promoted over the years to the positions of Commodity Manager and Director of Business and Process Improvement and Training. (R. Item 8, 6/7/11 H.T. at 5.) In October 2007, Claimant was promoted by Employer to the position of Chief Procurement Officer in Employer's Bureau of Procurement. (R. Item 28, Transcript of November 29, 2011 Referee Hearing (11/29/11 H.T.) at 16; R. Item 8, 6/7/11 H.T. at 5 & Claimant Ex. 4.) As Chief Procurement Officer, Claimant worked under the Deputy Secretary of Procurement, who in turn was a subordinate of the Secretary of the Department of General Services. (R. Item 8, 6/7/11 H.T. at 7, 9-10.) On March 21, 2011, Employer terminated Claimant's employment effective March 22, 2011, on the grounds that his "services as Chief Procurement Officer in the Bureau of Procurement are no longer required." (R. Item 8, 6/7/11 H.T. at 5 & Claimant Ex. 1; R. Item 29, Board Decision and Order, Findings of Fact (Board F.F.) ¶1.)
Claimant promptly applied for benefits. Employer responded that Claimant's position as Chief Procurement Officer was "a major policy-making or advisory position" by "Job Description." (R. Item 2, Employer Separation Information Employer Questionnaire at 1.) The Unemployment Compensation Service Center excluded Claimant's wages from Employer and therefore denied Claimant's application for benefits on the grounds that he was financially ineligible, and Claimant timely appealed. During the pendency of his appeal, Claimant found new employment with another employer in early June 2012. (R. Item 8, 6/7/11 H.T. at 4.)
On June 7, 2011, the Referee conducted a hearing at which Claimant was represented by counsel and testified and introduced documentary evidence, but Employer did not appear. At this hearing, Claimant testified concerning his job responsibilities and introduced into evidence two Management Directives issued by the Governor's Office, Management Directive 530.22 and Chapter 10 of Management Directive 505.7, and Employer's written Position Description for his job as Chief Procurement Officer. (R. Item 8, 6/7/11 H.T. at 6-10 & Claimant Exs. 3-5.)
Management Directive 530.22, issued on November 20, 1996, sets forth the positions that the Commonwealth designates as "major nontenured policymaking or advisory positions" and the procedures for such designations. (R. Item 8, 6/7/11 H.T. Claimant Ex. 3.) Management Directive 530.22 states:
The Commonwealth as an employer interprets "major nontenured policymaking or advisory positions" as non-civil service bureau directors or equivalent and above, attorneys, key staff aides, and policy office professionals. Examples of such positions include:
Agency Heads
(Id. at 2 ¶5). Management Directive 530.22 further provides that "Agency heads are responsible for ... [i]dentifying major nontenured policymaking or advisory positions." (Id. at 2 ¶6(a).) Management Directive 530.22 does not define or set forth what constitutes "Senior Management Service."Associate Deputy Secretaries
Chief Counsels and all Attorneys
Correctional Superintendents
Deputy Secretaries
Executive Directors
Hospital Superintendents
Key Staff Aides to an Agency Head, a Deputy Secretary, or the Governor
Office Directors
Policy Office Professionals
Regional Directors, Regional Commissioners, Regional Administrators, etc.
Senior Management Service Managers
Management Directive 505.7, issued on November 9, 2010, addresses the Commonwealth's Human Resources policies and in Chapter 10 sets forth policies concerning positions in the "Senior Management Service." (R. Item 8, 6/7/11 H.T. Claimant Ex. 5.) Management Directive 505.7 does not designate any positions as Senior Management Service or as major nontenured policymaking or advisory positions, but sets forth criteria for assigning positions to the Senior Management Service, gives examples of positions that "may be assigned to the SMS [Senior Management Service]" and directs that the Secretary of Administration shall make recommendations to the Executive Board concerning assignment of positions to the Senior Management Service. (Id. at Chapter 10 §§ 10.1-10.3) (emphasis added). Employer's written Position Description for Claimant's job as Chief Procurement Officer does not state that the job is a Senior Management Service position, nor does it designate it to be a major nontenured policymaking or advisory position. (R. Item 8, 6/7/11 H.T. Claimant Ex. 4.)
On June 8, 2011, the Referee issued a decision reversing the Service Center's determination that Claimant was ineligible for benefits. (R. Item 9, Referee's Decision and Order.) The Referee concluded that Claimant's position with Employer was covered employment which must be included in determining his financial eligibility for benefits because his job as Chief Procurement Officer was not "a legally designated major policy making or advisory position." (R. Item 9, Referee's Decision and Order at 1 and Findings of Fact ¶¶2, 4.) In July 2011, following the Referee's decision, Claimant was paid benefits for the week ending April 9, 2011 through the week ending June 4, 2011. (R. Item 28, 11/29/11 H.T. Employer Ex. 1.)
On or about August 2, 2011, Employer received notification that Claimant had been paid unemployment benefits. (R. Item 28, 11/29/11 H.T. at 12-13 & Employer Ex. 1.) On October 11, 2011, Employer appealed the Referee's decision to the Board, requesting permission to appeal nunc pro tunc on the grounds that Employer did not receive notice of the Referee's hearing or the Referee's decision and did not learn that Claimant was granted benefits until August 2, 2011. (R. Item 13, Employer Petition for Appeal.) The Board, on October 28, 2011, ordered that the Referee hold a second hearing as the Board's Hearing Officer at which Employer would be permitted to present evidence in support of its request for nunc pro tunc appeal, evidence concerning the reasons for its failure to appear at the first hearing and evidence on the merits. (R. Item 17, Board Hearing Order.)
On November 29, 2011, the Referee held that second hearing, at which Employer's Director of Human Resources and counsel for Employer appeared, and Claimant appeared without counsel. (R. Item 28, 11/29/11 H.T. at 1.) At this hearing, the Unemployment Compensation Service Center's Claims Supervisor testified that neither the Notice of the first Referee hearing or the Referee's decision was sent to Employer. (R. Item 28, 11/29/11 H.T. at 5-11.) Employer's Director of Human Resources testified that Employer did not receive the Notice of Hearing or the Referee's decision, but did learn on or about August 2, 2011, that Claimant had been ruled eligible for benefits. (R. Item 28, 11/29/11 H.T. at 11-13.)
On the merits, Employer introduced testimony of its Director of Human Resources that Claimant's position was a Senior Management Service position, a letter to Claimant from the Deputy Secretary for Administration in October 2007 that referred to his Chief Procurement Officer position as a Senior Management Service position ineligible for unemployment benefits, and evidence that unemployment taxes were not withheld from Claimant's paycheck. (R. Item 28, 11/29/11 H.T. at 11, 13-16, 19-20 & Employer Exs. 2, 3; R. Item 27, Employer Documents Submitted for Hearing.) Employer did not, however, introduce any Management Directives, position descriptions or designation of Chief Procurement Officer as Senior Management Service or as a major policymaking or advisory position, and did not contend that any relevant Management Directives or position descriptions exist other than those introduced by Claimant at the first Referee hearing.
On January 27, 2012, the Board reversed the Referee's decision and ruled that Claimant was ineligible for benefits. (R. Item 29, Board Decision and Order at 3.) The Board found that Employer was not sent the Notice of Hearing or the Referee's decision and that it therefore had shown good cause for both its failure to appear at the Referee's first hearing and its late appeal. (R. Item 29, Board F.F. ¶¶8-9.) The Board deemed Employer's October 11, 2011 appeal timely filed on this basis. (R. Item 29, Board Decision and Order at 2.) On the merits, the Board found that Claimant's Chief Procurement Officer position was a Senior Management Service position and that "claimant had the authority to make and change policy." (R. Item 29, Board F.F. ¶¶2-3.) The Board did not find that there was any written designation of the position of Chief Procurement Officer as a major policymaking or advisory position or as a Senior Management Service position, but concluded "claimant was designated policymaking" pursuant to Management Directives 530.22 and 505.7 because "claimant had the authority to make and change policy." (R. Item 29, Board Decision and Order at 3.)
Claimant timely filed the instant petition for review appealing the Board's order to this Court. Claimant argues that the Board erred both in permitting Employer's late appeal and in holding that his position was excluded as a major nontenured policymaking or advisory position.
Our scope of review is limited to determining whether the Board's necessary findings of fact are supported by substantial evidence and whether the Board committed an error of law or violated constitutional rights. 2 Pa. C.S. § 704; Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 973 n.2 (Pa. Cmwlth. 2009).
The Board, on November 5, 2012, filed an Application to Quash Appeal. While the Board is correct that Claimant's brief does not comply with the Rules of Appellate Procedure, Claimant is proceeding pro se and we are able to discern the legal issues raised from his brief. We therefore deny the Application to Quash Appeal. Smithley v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029-30 n.6 (Pa. Cmwlth. 2010). We note, moreover, that the untimeliness of Employer's appeal is a jurisdictional defect that would properly be before us, even if Claimant had not adequately raised that issue. Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993).
We agree that the Board had no basis on which it could find that Employer's appeal, filed in October 2011, could be deemed timely, and the Board therefore lacked jurisdiction to reverse the Referee's decision. The period for filing an appeal from a referee's decision is fifteen days from the date that the referee's decision was mailed. Section 502 of the Unemployment Compensation Law, 43 P.S. § 822; 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). Failure to file an appeal to the Board within that period is a jurisdictional defect that bars the Board from considering the merits of any claim of error in the Referee's decision, unless the party seeking to appeal proves that the delay in the appeal was due to extraordinary circumstances, such as a breakdown in the administrative process or circumstances beyond the appellant's control. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1002-03 (Pa. Cmwlth. 2010); Pennsylvania Turnpike Commission v. Unemployment Compensation Board of Review, 991 A.2d 971, 974 (Pa. Cmwlth. 2009); Hessou, 942 A.2d at 197-98; Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235, 1237-38 (Pa. Cmwlth. 1993). "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.
Proof that a notice or referee's decision was not sent to the appellant establishes a breakdown in the administrative process that can permit a late appeal. UPMC v. Unemployment Compensation Board of Review, 852 A.2d 467, 468-71 (Pa. Cmwlth. 2004); Carolina Freight Carriers Corp. v. Unemployment Compensation Board of Review, 650 A.2d 1101, 1102-04 (Pa. Cmwlth. 1994); Blast Intermediate Unit #17 v. Unemployment Compensation Board of Review, 645 A.2d 447, 448-50 (Pa. Cmwlth. 1994); United States Postal Service v. Unemployment Compensation Board of Review, 620 A.2d 572, 573-74 (Pa. Cmwlth. 1993). Such circumstances, however, do not indefinitely extend the party's right to appeal. A late appeal can be permitted only where the appellant files the appeal promptly after learning of the decision it seeks to appeal. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 385, 671 A.2d 1130, 1131 (1996); Russo, 13 A.3d at 1003 n.3. For a late appeal to be allowed nunc pro tunc, "[t]he appellant must also establish that: (1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) the appellee is not prejudiced by the delay." Russo, 13 A.3d at 1003 n.3.
Thus, even where a Referee's decision is not properly sent, that circumstance only permits an appeal that would be timely if the appeal deadline is calculated from the date that the appellant had notice of the decision. See Unemployment Compensation Board of Review v. Ferraro, 348 A.2d 753, 754-55 (Pa. Cmwlth. 1975) (even if decision had not been sent to appellant, appeal would be untimely where no appeal was taken within the appeal period after the date appellant admitted receiving actual notice of the decision). Compare UPMC, 852 A.2d at 468-71 (nunc pro tunc appeal allowed where employer filed appeal within twelve days of learning of decision, less than the fifteen-day appeal period); Carolina Freight Carriers, 650 A.2d at 1102-04 (nunc pro tunc appeal allowed where claimant filed appeal within four days of learning of decision); Blast Intermediate Unit #17, 645 A.2d at 448-50 (nunc pro tunc appeal allowed where employer filed appeal on February 22 after first learning in early February that claimant was receiving benefits); United States Postal Service, 620 A.2d at 573-74 (nunc pro tunc appeal allowed where employer filed appeal within three days of learning of decision).
Employer showed and the Board properly found that there was a serious breakdown in the administrative process, that Employer was not sent the Notice of the first Referee hearing or the Referee's decision, and that Employer had no notice of the Referee's decision until August 2, 2011. Not only was there testimony that the Notice of the June 2011 hearing and the Referee's decision were not mailed to Employer, but neither the Notice of Hearing nor the Referee's decision lists Employer as a party. (R. Item 7, Notice of Hearing at 1; R. Item 9, Referee's Decision and Order at 1.) Employer, however, did not file its appeal to the Board until October 11, 2011 (R. Item 13, Employer Petition for Appeal), over two months after it admittedly learned that Claimant had been granted benefits. The Board did not find that Employer filed any appeal prior to October 11, 2011, or that there was any reason or justification for its failure to timely appeal once it had notice. Indeed, the Board does not discuss Employer's two-month delay in either its decision or its brief in this Court.
Nor is there any basis on which the Board could find that Employer timely appealed after it had notice. While Employer's counsel made assertions, in its October 11, 2011 appeal and to the Referee at the second hearing, that it allegedly filed an earlier appeal in August 2011 (R. Item 13, Employer Petition for Appeal at 2; R. Item 28, 11/29/11 H.T. at 26), the record is devoid of support for those assertions. The only appeal filed by Employer that appears in the certified record is the October 11, 2011 appeal to the Board, and the certified record contains no filing or communication of any kind from Employer before October 7, 2011, when Employer sent an email request for transcripts. (R. Item 12, Employer Request for Copy of Transcript.) Employer attached no documents to its October 11, 2011 appeal showing the existence of a prior appeal or when it was filed. Moreover, at the second Referee hearing where it was given the opportunity to meet its burden to show that its appeal should be deemed timely, Employer introduced no documents or evidence of the alleged prior appeal, when it was filed or how it justified Employer's two-month delay. There is therefore no basis on which the Board or this Court could find that Employer appealed promptly. Pennsylvania Turnpike Commission, 991 A.2d at 974-75 (employer claim that it timely challenged claimant's financial eligibility under Section 1002(11) could not be considered where record contained no documentation of those filings).
The only other documents that appear in the certified record between the Referee's June 8, 2011 decision and Employer's October 11, 2011 appeal consist of emails between Claimant and the Department of Labor & Industry between September 22 and 25, 2011, and a September 29, 2011 letter from an Unemployment Compensation Administrator sending Claimant an audio copy of the June 7, 2011 Referee hearing testimony. (R. Item 10, Claimant's Request for Copy of Transcript; R. Item 11, Board's Response to Claimant.) While these documents indicate that a hearing was apparently sought by Employer under another docket number and was scheduled for October 4, 2011, they are over a month and one-half after Employer had notice that Claimant had been found eligible for benefits, and do not indicate when Employer requested the hearing or that Employer took any action to challenge Claimant's benefits within a reasonable time after August 2, 2011. No transcript or other documentation of this October 4, 2011 hearing appears in the record.
Because Employer did not appeal the Referee's decision until October 11, 2011, over two months after it received notice of that ruling in early August 2011, Employer could not satisfy the requirements for nunc pro tunc appeal that it show that "the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness," and that "the elapsed time period is of very short duration." Russo, 13 A.3d at 1003 n.3. The Board therefore lacked jurisdiction to review the Referee's decision and its order reversing the Referee's decision must be vacated. Darroch, 627 A.2d at 1238.
In addition, even if Employer's appeal had been timely filed, the Board's ruling that Claimant was ineligible for benefits under Section 1002(11) of the Unemployment Compensation Law was in error. The Board did not find any designation of the position of Chief Procurement Officer as a policymaking or advisory position, but instead based its ruling on factual determinations that Claimant "had the authority to make and change policy" and that Claimant's position had been treated as Senior Management Service. (R. Item 29, Board F.F. ¶¶2-4, 6-7, Board Decision and Order at 3.)
Section 1002(11) excludes from eligibility for benefits "positions which, under or pursuant to the laws of this Commonwealth, are designated as (i) a major nontenured policymaking or advisory position; or (ii) a policymaking position the performance of the duties of which ordinarily does not require more than eight hours per week." 43 P.S. § 892(11) (emphasis added). Whether a claimant is ineligible under this Section depends not on the facts concerning his job authority and responsibilities, but on whether there has been a formal designation of the position as a "major nontenured policymaking or advisory position." Zerbe v. Unemployment Compensation Board of Review, 545 Pa. 406, 412-14, 681 A.2d 740, 742-44 (1996); Odato v. Unemployment Compensation Board of Review, 805 A.2d 660, 662 (Pa. Cmwlth. 2002); Conroy v. Unemployment Compensation Board of Review, 693 A.2d 254, 256 (Pa. Cmwlth. 1997); Gahres v. Unemployment Compensation Board of Review, 433 A.2d 152, 153-54 (Pa. Cmwlth. 1981).
While Odato and Conroy involved Section 1201(b)(9) of the Unemployment Compensation Law, 43 P.S. § 911(b)(9), the exclusion for employees of political subdivisions, rather than the Commonwealth, the language of the Section 1201(b)(9) is identical to the language of Section 1002(11) and the case law interpreting Section 1209(b)(9) is equally applicable to cases governed by Section 1002(11). Odato, 805 A.2d at 662 n.3; Conroy, 693 A.2d at 256 n.3. --------
Nothing in the language of Section 1002(11) requires a factual determination as to whether the unemployment compensation claimant actually performed major policymaking or advisory functions. Thus, the Section 1002(11) exclusion from unemployment compensation benefits is expressly dependent upon a claimant's position being designated as a major nontenured policy making or advisory position. To hold otherwise goes contrary to the clear wording of the statute.Zerbe, 545 Pa. at 413, 681 A.2d at 743 (emphasis added).
Section 1002(11) excludes a claimant from benefits only where his position is designated as policymaking or advisory by "statute, regulation, executive order or the like." Zerbe, 545 Pa. at 412, 681 A.2d at 743; Odato, 805 A.2d at 662 (quoting Gahres); Conroy, 693 A.2d at 256 (quoting Gahres); Gahres, 433 A.2d at 154. Designation of a position as policymaking or advisory by a Management Directive meets this requirement. Zerbe, 545 Pa. at 412, 681 A.2d at 743; Conroy, 693 A.2d at 256; Bowe v. Unemployment Compensation Board of Review, 477 A.2d 587, 589 (Pa. Cmwlth. 1984). It is essential, however, that "[t]he designation be more than a functional description of job duties .... It must, at a minimum, be a written statement of policy which has the clear and intended effect of establishing the job tenure and employment status attached to the position. Moreover, the statement must be made by an official or entity with authority to set such terms." Odato, 805 A.2d at 662-63 (quoting Conroy).
Here, the Management Directives in evidence did not list Claimant's position, Chief Procurement Officer, among the categories of positions designated as policymaking or advisory. The only category of position designated by Management Directive that the Board found applicable to Claimant's job was Senior Management Service. (R. Item 29, Board F.F. ¶¶6-7.) The Position Description for Chief Procurement Officer, however, does not designate or define it as Senior Management Service. (R. Item 8, 6/7/11 H.T. Claimant Ex. 4.) Nor was there any evidence before the Board of any designation or statement that the position was Senior Management Service by any official or entity with authority to make that determination.
For the foregoing reasons, we vacate the Board's denial of benefits.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 18th day of March, 2013, the Application to Quash Appeal filed by the Unemployment Compensation Board of Review is DENIED and the Order of the Unemployment Compensation Board of Review in the above-captioned matter holding that Jeffrey I. Mandel was ineligible for benefits is hereby VACATED.
/s/_________
JAMES GARDNER COLINS, Senior Judge