Opinion
No. 1175 C.D. 2013
02-19-2014
Barbara J. Nemeth, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Barbara J. Nemeth (Claimant) petitions this Court for review of the June 14, 2013 order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's dismissal of her appeal under Section 501(e) of the Unemployment Compensation Law (Law). The sole issue before the Court is whether Claimant timely filed her appeal. We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e). Section 501(e) of the Law provides that a determination of the Department shall become final, and compensation shall be paid or denied accordingly, unless an appeal is filed within fifteen days from the date the notice of determination is mailed. Further, the Board's regulations at 34 Pa. Code §101.82 set forth methods by which the time for filing such an appeal may be determined. Moran v. Unemployment Compensation Board of Review, 973 A.2d 1024 (Pa. Cmwlth. 2009).
Claimant was employed by Servicemaster of Somerset (Employer) and her last day of employment was July 16, 2012. (Record Item (R. Item) 5, Notice of Determination.) She received a total of $5,028 in unemployment benefits for the period beginning with the claim week ending on September 15, 2012, through the claim week ending on December 15, 2012. (R. Item 6, Notice of Determination, Overpayment of Benefit.) On February 27, 2013, the Department of Labor and Industry, Office of Unemployment Compensation Benefits (Department) issued a Notice of Determination to Claimant, finding her ineligible for benefits under Section 402(b) of the Law. (R. Item 5.) On the same date, Claimant also received a Notice of Determination, Overpayment of Benefit and a Notice of Penalty Weeks Determination. (R. Items 7, 8.) Each of the notices received by Claimant contained a statement that the final date to appeal the Department's determination was March 14, 2013. (R. Items 5, 7, 8.)
43 P.S. § 802(b) (relating to unemployment due to voluntarily leaving work without cause of a necessitous and compelling nature).
Claimant's appeal from the Department's Notice of Determination was received by the Department via fax on March 18, 2013. (R. Item 10, Claimant's Petition to Appeal from Notice of Determination.) On April 12, 2013, a referee held a hearing, and thereafter issued a decision and order dismissing Claimant's appeal as untimely. Claimant appealed to the Board.
At the hearing, Claimant appeared without counsel, and Employer was represented by counsel, but did not present evidence. (R. Item 15, Referee's Hearing: Transcript of Testimony.)
On June 14, 2013, the Board affirmed the referee's decision, and made the following relevant findings of fact:
4. The [Notice of Determination] informed [Claimant] that March 14, 2013 was the last day on which to file an appeal...(R. Item 20, Board's Decision and Order, Findings of Fact ¶¶ 4-9 (emphasis added).) Claimant appealed from the Board's order to this Court.
5. [Claimant] filed her appeal by fax on March 18, 2013.
6. [Claimant] contends that she filed an appeal by fax on March 5, 2013.
7. There is no evidence that an appeal was received by the Department on March 5, 2013.
8. [Claimant] was not misinformed or misled by the unemployment compensation authorities concerning her right or necessity to appeal.
9. The filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or by non-negligent conduct.
Because Claimant had the burden of proof as to the timeliness of her appeal and was the only party to present evidence, our Court's review is limited to a determination of whether the Board capriciously disregarded competent evidence, whether there has been a constitutional violation, or whether the Board committed an error of law. Wright v. Unemployment Compensation Board of Review, 41 A.3d 58, 62 n.5 (Pa. Cmwlth. 2011).
Before this Court, Claimant argues that she attempted to file her appeal on March 5, 2013, nine days before the last day to timely appeal, and that she had good cause, in the nature of non-negligent conduct, for failing to actually file the appeal until March 18, 2013. At the referee hearing, Claimant testified that on March 5, 2013, she went to a store called "O'Connor's Heating and Air-Conditioning," and directed the store employee to fax her appeal both to her attorney and to the Department. (R. Item 15, Referee's Hearing: Transcript of Testimony (H.T.) at 4-5.) Claimant offered evidence to demonstrate that the fax to her attorney was received by her attorney, and indicated that she did not become aware that the fax she directed to be sent to the Department had not been received by the Department, until March 18, 2013, when she made a telephone inquiry to the Department and was told that an appeal had not been received. (Id. at 5; Exhibit C2.) At that time, Claimant asserts, she immediately took steps to file her appeal. At the hearing, Claimant also offered into evidence an unsigned note from the store's office manager, Barbra Updyke, indicating that Ms. Updyke had faxed the documents to both recipients on March 5, 2013, and to the best of her knowledge, the fax intended for the Department had been received by the Department. (Id., Exhibit C1.)
Employer's counsel did not object to the entry of the note into evidence, but stated that the note was not signed by the purported author. (R. Item 15, H.T. at 5.) In the note, the author states that the fax machine does not print or display proof of completion, but if a fax is not received, it is apparent because the fax machine will not make a copy or a busy signal is received. (Id., Exhibit C1.)
In his decision and order, the referee reasoned that the unsigned note presented by Claimant was hearsay and could not be used to establish a finding of fact in regard to the timeliness of Claimant's appeal. (R. Item 16, Referee's Decision/Order, Reasoning.) The Board affirmed the Referee's decision as proper, noting that "the party filing the appeal bears the risk of loss of an electronically transmitted appeal" and stating that the Board and its referees "have no jurisdiction to allow an appeal filed after the expiration of the statutory appeal period absent limited exceptions not relevant herein." (R. Item 20, Board's Decision and Order, Discussion.)
Where it is admitted without objection, hearsay evidence will be given its natural probative effect and may support a finding of fact if corroborated by any competent evidence in the record. Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976). Here, there was no corroborating evidence that Ms. Updyke actually faxed Claimant's appeal to the Department or, that if it was faxed, it went through to the Department successfully. --------
An appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown or non-negligent conduct, either by a third party or by the appellant. Lopresti v. Unemployment Compensation Board of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012). Our Court addressed the limited circumstances wherein the Board may consider an untimely appeal in Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth. 2008), stating:
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. An appellant may satisfy this heavy burden in one of two ways. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, he can show non-negligent conduct beyond his control caused his delay.Hessou, 942 A.2d at 198 (emphasis added and citations omitted.) Here, the law is clear that "[a] party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed." 34 Pa. Code § 101.82 (b)(3)(ii). Claimant could not provide first-hand testimony or documentation to establish that her appeal was sent by fax, let alone successfully transmitted to the Department on March 5, 2013. Indeed, she admitted that as soon as she discovered, on March 18, 2013, that the Department had not received her appeal, she attempted, first from a local library fax machine and then once more from the fax machine at O'Connor's Heating and Air-Conditioning, to re-fax her appeal; ultimately, her attempt to fax the appeal from a third location, "Westmont Fax," was successful. (R. Item 15, H.T. at 6-7.)
Claimant did not demonstrate, and the Board did not find, that the filing of her late appeal was due to non-negligent conduct beyond her control. Thus, Claimant's appeal was properly dismissed as untimely. Accordingly, the Board's order is affirmed.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 19th day of February, 2014, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge