Opinion
No. 618 C.D. 2014
12-11-2014
Andrew Okulski, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Andrew Okulski (Claimant) petitions for review of the March 4, 2014 order of the Unemployment Compensation Board of Review (Board), which affirmed a referee's dismissal of Claimant's appeal as untimely pursuant to section 501(e) of the Unemployment Compensation Law (Law). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e).
After Claimant separated from his employment with Advanced Life Support Ambulance, Inc. (Employer), he applied for unemployment compensation benefits. On November 18, 2013, the local service center issued a notice of determination denying Claimant benefits under section 402(b) of the Law, 43 P.S. §802(b). The notice was mailed to Claimant's last known post office address and informed Claimant that December 3, 2013, was the last day to file an appeal. Claimant filed his appeal by electronic mail sent December 5, 2013. (Board's Findings of Fact Nos. 1-2, 4-5; Record Items Nos. 1-4.)
At the referee's hearing on January 6, 2014, Claimant testified that he never received the notice that his claim was denied. Claimant acknowledged that he called the local service center on November 20, 2013, and was informed that his case had been decided. However, Claimant stated that he was instructed to wait for the notice of determination in the mail before filing an appeal. Claimant testified that he called the local service center seven or eight times between November 20, 2013, and December 5, 2013. Claimant stated that when he called the local service center again on December 5, 2013, he was first told that Employer was contesting his unemployment claim and he filed an appeal that same day. (Notes of Testimony (N.T.) at 6, 9-11.)
Claimant testified that when he moved from his old address to his new address on December 8, 2013, he contacted the Department approximately a week before Christmas to notify it of the change of address, and, on December 25, 2013, he notified the post office that his mail should be forwarded to his new address. (Board's Findings of Fact Nos. 3, 6-9; N.T. at 7-8.)
In his January 15, 2014 decision, the referee noted that Claimant filed his petition for appeal with the referee two days late. The referee discredited Claimant's testimony that he never received the November 18, 2013 notice of determination and found that Claimant was told that he had a right to appeal from that determination when he called the local service center on November 20, 2013. Notably, the record includes the notice of determination mailed to Claimant, bearing his address of record and the mail date of November 18, 2013. (Record Item No. 4.) The referee concluded that Claimant did not meet his burden of demonstrating that he was entitled to a nunc pro tunc appeal and dismissed Claimant's appeal as untimely. Claimant appealed to the Board.
By decision and order dated March 4, 2014, the Board affirmed the dismissal of Claimant's appeal. The Board observed that a timely filed appeal is mandatory except in limited circumstances, and the Board determined that there was no fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or non-negligent conduct that caused Claimant's late-filed appeal. See Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996) (holding that an appeal nunc pro tunc is allowed only when: (1) the delay in filing is because of extraordinary circumstances that involve fraud or breakdown in the court's operation or non-negligent circumstances concerning either the appellant or the appellant's counsel; (2) the appeal is filed within a short time after the appellant or the appellant's counsel discovered and had an opportunity to address the untimeliness; (3) the elapsed time period is short; and (4) the appellee is not prejudiced by the delay). The Board discredited Claimant's testimony that he never received the notice of determination, noting that the notice was mailed to Claimant's last known address, (Record Item No. 4), and was not returned as undeliverable. The Board also noted that Claimant did not advise the postal authorities or the Department of his address change until after he filed his appeal on December 5, 2013. Accordingly, the Board affirmed the referee's determination.
We note that the Board erroneously references the notice of hearing instead of the notice of determination. However, this error is harmless and does not affect the outcome of the case. See Hussey Copper Limited v. Unemployment Compensation Board of Review, 718 A.2d 894, 899 (Pa. Cmwlth. 1998) (holding that an error is not harmless if it is "material to the outcome of the case").
On appeal to this Court, Claimant argues that the Board erred in affirming the dismissal of his appeal as untimely filed, because the local service center fraudulently failed to timely inform him that he should appeal from the determination when he called and because there was an administrative breakdown by the post office.
Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Section 501(e) of the Law provides:
Unless the claimant . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.43 P.S. §821(e) (emphasis added). "This fifteen-day time limit is mandatory; if an appeal is not timely filed within the specified time period, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter." McClean v. Unemployment Compensation Board of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006) (citation and quotations omitted). The limitation period may be waived if a claimant "presents adequate excuse for his delay; however, the claimant carries a heavy burden in such cases and is required to prove more than mere hardship; indeed, proof of fraud or its equivalent of the administrative authorities is required." Staten v. Unemployment Compensation Board of Review, 488 A.2d 1207, 1209 (Pa. Cmwlth. 1985). "[A] nunc pro tunc appeal may be allowed where extraordinary circumstances involving fraud or some breakdown in the administrative process caused the delay in filing . . . ." McClean, 908 A.2d at 959 (citation and quotations omitted).
Claimant argues that the local service center negligently misinformed him about his appeal rights. He contends that if the local service center had informed him of the denial of his unemployment compensation claim when he called on November 20, 2013, or any of the other times that he called before December 3, 2013, he would have timely filed an appeal. However, the Board specifically rejected Claimant's testimony that he never received the notice of determination, and relied on the notice of determination that contained Claimant's last known mailing address and the mailing date of November 18, 2013. (Record Item No. 4.) The Board is the ultimate arbiter of credibility, Peak v. Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985), and we will not disturb the Board's findings where, as here, the record contains substantial evidence to support them. Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841, 843 (Pa. Cmwlth. 2005).
Claimant also argues that there was an administrative breakdown by the post office when it failed to deliver to Claimant the notice of determination. However, there is a presumption that a claimant has received all notices, orders, or decisions if there is evidence in the record that the same have been mailed to a claimant's last known address and were not returned as undeliverable. 34 Pa. Code §101.53; Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). The claimant bears the burden of proof to rebut this presumption. Cf. Volk v. Unemployment Compensation Board of Review, 49 A.3d 38, 41 (Pa. Cmwlth. 2012). More important, as previously stated, the Board rejected Claimant's testimony that he did not receive notice.
Claimant asserts that he had difficulties in notifying the post office of his change in address and in placing a forwarding address on his account. However, based on Claimant's testimony, the Board found that Claimant did not move until December 8, 2013, that he did not notify the Department of his address change until December 13, 2013, and that he did not notify the postal authorities or attempt to place a forwarding address on his account until a short time before December 25, 2013. (Board's Findings of Fact Nos. 6-8.) All of these actions occurred after the December 3, 2013 deadline for Claimant to file an appeal. See Ferraro v. Unemployment Compensation Board of Review, 464 A.2d 697, 699 (Pa. Cmwlth. 1983) (holding that a claimant's own delay in notifying the post office of an address change does not excuse a late-filed appeal). Any difficulties that Claimant may have had with the post office after the appeal period expired are immaterial to his untimely appeal.
On appeal, Claimant relies entirely on facts contrary to those found by the Board. Because Claimant failed to present credible evidence establishing that his appeal was untimely due to the local service center's negligent conduct or an administrative breakdown by the post office, the Board properly upheld the dismissal of his appeal as untimely under section 501(e) of the Law.
Claimant asserts in his petition for review that the Department erroneously excluded an apartment number from the mailing address on the notice of determination. However, Claimant did not allege during the hearing or in his brief that the address listed on the notice of determination was incorrect. Therefore, the argument is waived. Pa.R.A.P. 1551(a) ("No question shall be heard or considered by the court which was not raised before the government unit . . . ."); Tyler v. Unemployment Compensation Board of Review, 591 A.2d 1164, 1167 (Pa. Cmwlth. 1991) (holding that arguments not addressed in a party's brief are waived).
Claimant also asserts in his petition for review that he never received the notice of hearing. However, he does not address this issue in his brief, and, thus, the argument is waived. Tyler. --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 11th day of December, 2014, the March 4, 2014 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge