Opinion
No. 871 C.D. 2012
10-25-2012
William R. Powell, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
William R. Powell (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) that dismissed as untimely under Section 502 of the Unemployment Compensation Law (Law) Claimant's appeal from the referee's decision which granted the withdrawal of Claimant's appeal from the Unemployment Compensation Service Center's denial of benefits under Section 402(e) of the Law, 43 P.S. §802(e).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
The facts, as found by the Board, are as follows:
1. The claimant filed an application for unemployment compensation benefits effective August 7, 2011.
2. The claimant's request for benefits was denied by the Department of Labor and Industry (Department).
3. The claimant filed an appeal from this determination.Board Opinion, April 17, 2012, (Opinion), Findings of Fact Nos. 1-13 at 1-2.
4. On September 20, 2011, the Referee issued a decision which granted the claimant's request to withdraw his appeal. The claimant chose to do so because he began to receive workers' compensation benefits and believed that he could not receive both those and UC benefits at the same time.
5. A copy of the Referee's decision was mailed to the claimant at his last known post office address on the same date.
6. The decision was accompanied by notice advising that the interested parties had fifteen (15) days in which to file a valid appeal.
7. The decision mailed to the claimant was not returned by postal authorities as undeliverable.
8. The claimant's appeal from the Referee's decision, in order to be timely, had to have been filed on or before October 5, 2011.
9. The claimant's appeal was filed on February 1, 2012, by fax.
10. The claimant asserts that he did not receive the Referee's decision in the mail.
11. The claimant decided to file an appeal after his workers' compensation benefits were denied on November 2, 2011. The claimant waited until after the appeal process was begun.
12. The claimant was not misinformed or misled by the unemployment compensation authorities concerning his right or the necessity to appeal.
13. The claimant's 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.
The Board determined:
The last day to file an appeal from this decision was October 5, 2011. However, the claimant did not file an appeal until February 1, 2012. The Board discredits the claimant's testimony that he did not receive the Referee's decision in the mail as it was mailed to his last known and correct address and was not returned by the postal authorities as undeliverable. Moreover, the claimant admitted that he only thought to reinstate his request for UC benefits after his workers' compensation benefits were denied and the appeal process was begun.Opinion at 2.
The provisions of this section of the Law are mandatory, and the Board has no jurisdiction to accept an appeal filed after the expiration of the statutory appeal period absent limited exceptions not relevant herein. Therefore, the claimant's appeal from the referee's decision must be dismissed.
Claimant contends that the referee's office misled him.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Claimant challenges the Board's determination that Claimant's appeal from the referee's order was untimely. Claimant contends that the referee's office misled him. However, a review of the argument section of Claimant's brief reveals he did not include this issue in the argument. Consequently, this issue was waived. Pa.R.A.P. 2116(a); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). (Issues not briefed are waived).
Assuming arguendo that Claimant preserved this issue, Claimant still does not prevail.
Section 502 of the Law, 43 P.S. §822, provides that a party has fifteen days to appeal the decision of the referee to the Board. The Board's regulation, 34 Pa.Code §101.82, provides that a party seeking to appeal an unemployment compensation determination shall file an appeal on or before the fifteenth day after the date on which notification of the decision was delivered personally or mailed to the party at his last known postal address.
This Court has held that where a notice is mailed to a claimant's last known address, and not returned by the post office as undeliverable, the claimant is presumed to have received it and is barred from attempting to appeal after the expiration of the appeal period. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825 (Pa. Cmwlth. 1979).
In Mihelic, this Court actually addressed the issue of the timeliness of an appeal from the Unemployment Compensation Service Center to the referee under Section 501(e) of the Law, 43 P.S. §821(e), but the same reasoning applies here.
This Court has also held that the statutory time limit established for appeals is mandatory. The appeal period may be extended beyond the statutory limit only where the appellant establishes that there was fraud or manifestly wrongful or negligent conduct on the part of the administrative authorities. An appellant carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Compensation Board of Review, 645 A.2d 447 (Pa. Cmwlth. 1994). Absent fraud, there is a presumption of regularity of the administrative authorities. Cameron v. Unemployment Compensation Board of Review, 430 A.2d 396 (Pa. Cmwlth. 1981). This Court has also permitted the filing of untimely appeals if the delay was beyond the control of the appellant or his attorney. See Perry v. Unemployment Compensation Board of Review, 459 A.2d 1342 (Pa. Cmwlth. 1983).
Here, it is undisputed that on September 20, 2011, the referee issued a decision which permitted Claimant to withdraw his appeal from the Unemployment Compensation Service Center. The Board found that a copy of the decision was mailed to Claimant's last known address and was not returned as undeliverable. Regarding whether he received the decision, Claimant testified, "I don't remember if I've seen it or not. No, I never got that in the mail. . . . I don't think so." Notes of Testimony, March 21, 2012, at 6.
The Board did not find Claimant credible. In unemployment compensation proceedings the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 378 A.2d 829 (1977).
Claimant had fifteen days to appeal the referee's order. The last day to timely appeal was October 5, 2011. Claimant did not file his appeal until February 1, 2012. The Board did not err when it determined Claimant's appeal was untimely.
Although Claimant in his brief asserts that someone in the referee's office misled him, he neither testified nor presented any evidence with respect to being misled.
Claimant also contends that the Board erred when it determined that there was insufficient evidence to support a determination that Claimant was ineligible for unemployment benefits and that the Board erred when it terminated Claimant's benefits. Because these issues go to the merits of whether he was ineligible for unemployment compensation benefits and not whether the appeal was timely, this Court need not address them. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 25th day of October, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge