Summary
holding the 15-day statutory time limit for appeals from a referee's decision is mandatory
Summary of this case from Percinsky v. Unemployment Comp. Bd. of ReviewOpinion
October 1, 1987.
Unemployment compensation — Timeliness of appeal — Appeal nunc pro tunc — Burden of proof — Negligence of appellant.
1. The statutory time limit for filing an appeal in an unemployment compensation case is mandatory in the absence of fraud or manifestly wrongful or negligent conduct by unemployment compensation authorities, and the burden of proof is upon an appellant to establish the basis for permitting an appeal nunc pro tunc. [649]
2. An assertion by an unemployment compensation claimant that she was misled or misinformed regarding the time for filing an appeal from the denial of her claim is insufficient to justify the allowance of an appeal nunc pro tunc, when the claimant admits that she failed to read the notice advising of the appeal time limit accompanying the decision of the referee which would have alerted her to the possible need to obtain a copy of detailed appeal procedures which were not included with the decision. [649]
Submitted on briefs August 11, 1987, to Judges CRAIG and PALLADINO, and Senior Judge BARBIERI, sitting as a panel of three.
Appeal, No. 2682 C.D. 1986, from the Order of the Unemployment Compensation Board of Review, in case of In Re: Claim of Karen L. Polakovic, No. B-251813.
Application with the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal dismissed as untimely. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard G. Fishman, for petitioner. Jonathan Zorach, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.
Karen L. Polakovic, claimant, appeals an order of the Pennsylvania Unemployment Compensation Board of Review dismissing her appeal from a referee's decision denying her unemployment benefits. The board found that claimant's appeal was not timely filed, and that, under Pennsylvania's Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 822, it did not have jurisdiction to accept an appeal filed after the expiration of the statutory appeal period.
The sole issue for review is whether claimant's late appeal from the referee's decision should be permitted nunc pro tunc because notice of the referee's determination did not include a pink card explaining claimant's appellate rights.
Both the Office of Employment Security and the referee denied benefits. The claimant received the referee's decision, dated March 12, 1986. Under section 502 of the Law, 43 P. S. § 822, parties have fifteen days from the date of the referee's decision to file an appeal with the board. The last day for claimant to file a timely appeal was March 27, 1986; claimant filed her appeal April 4, 1986.
Claimant argues that failure to include the pink card, which outlines appellate procedures before the board, constituted negligent misinformation by the administrative agency. Claimant acknowledges that the copy of the referee's decision which she did receive included the following:
NOTICE: You have the right to file a further appeal within fifteen days after the mailing date of this decision. For more information, please read the enclosed card.
Claimant states that she did not read this notice. Claimant concludes by arguing that the above notice was also misleading, because no pink card was included in the envelope and no information on the appeal process was given.
The statutory time limit for filing an appeal from a referee's determination is mandatory in the absence of fraud or manifestly wrongful or negligent conduct by the administrative agency; the claimant bears the burden of proof to establish administrative error to allow an appeal nunc pro tunc. Berger v. Unemployment Compensation Board of Review, 68 Pa. Commw. 476, 449 A.2d 818 (1982); Mogil v. Unemployment Compensation Board of Review, 50 Pa. Commw. 635, 413 A.2d 480 (1980). Claimant argues that the agency's failure to include the pink card with the referee's decision constituted such negligent conduct.
However, this court has held that the Law places no duty on the board to include detailed notice of appeal procedures from an adverse decision, nor is such a duty imposed by due process. Mogil, 50 Pa. Commw. at 637, 413 A.2d at 481. The fact that the board did include notice on the referee's decision, coupled with claimant's admission that she did not read this notice, negates the validity of claimant's statement that she was misled or misinformed regarding the time period for appeal. Had claimant read this notice, she would have known that action was required within fifteen days, and that the pink card was absent.
We conclude that claimant has not met her burden of proof that her appeal was untimely because of the board's wrongful conduct, rather than her own negligent reading of the referee's decision. Accordingly, we agree with the board's finding that claimant was not misled regarding the time period for appeal, and affirm the board's conclusion that it did not have jurisdiction to hear claimant's appeal nunc pro tunc.
ORDER
NOW, October 1, 1987, the decision of the Unemployment Compensation Board of Review, Decision No. B-251813, dated August 12, 1986, is affirmed.