Opinion
No. 1785 C.D. 2013
02-24-2014
Robert M. Rabe, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Robert M. Rabe (Claimant), pro se, petitions for review of an Order of the Unemployment Compensation (UC) Board of Review (Board) dismissing, as untimely pursuant to Section 502 of the UC Law (Law), Claimant's appeal to the Board from the UC Referee's Decision establishing Claimant's weekly benefit rate. On appeal Claimant acknowledges that his appeal to the Board from the UC Referee's Decision was untimely, but requests that this Court "consider the 'intent' of [his] response despite one lapse in timeliness." (Claimant's Br. at 4.) Discerning no error in the Board's dismissal of Claimant's appeal as untimely, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Section 502 of the Law provides, in relevant part, that a UC Referee's decision "shall be deemed the final decision of the [B]oard, unless an appeal is filed therefrom, within fifteen days after the date of such decision." 43 P.S. § 822. This requirement is jurisdictional, and the failure to file an appeal within fifteen days deprives the Board of jurisdiction to hear the appeal. Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). An untimely appeal can be considered only in limited circumstances, and the burden to establish the right to an untimely appeal is a heavy one. Id. at 198. There are two ways to satisfy this heavy burden. Claimant must show either that: (1) the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct; or (2) non-negligent conduct beyond Claimant's control caused the delay. Id.
In this matter, Claimant received a Notice of Financial Determination (Notice), mailed March 18, 2013, which determined his weekly benefit rate for the benefit year beginning January 27, 2013 as being $448. (Notice of Financial Determination, R. Item 6.) Claimant timely appealed the Notice, alleging that his wages for each quarter as reported by his former employer, Med Tech Services, was incorrect. (Claimant's Brief at 9.) The UC Referee issued a Decision, with a mailing date of May 16, 2013, modifying Claimant's quarterly wages and finding Claimant was financially eligible for UC benefits at the same weekly benefit rate of $448. (Board Op., Findings of Fact (FOF) ¶ 1.) In order to be timely filed, Claimant's appeal had to be filed on or before May 31, 2013. (FOF ¶ 6.) However, Claimant's appeal from the UC Referee's Decision was untimely filed with the Board on June 5, 2013 by certified mail. (FOF ¶ 7.) Because the appeal was untimely, the Board notified Claimant that he must request, in writing, that a hearing be scheduled to permit Claimant to explain why he believed his appeal was timely filed. (Board's Response to Claimant's Late Petition for Appeal, R. Item 15.) In response, Claimant requested a hearing which was held before a UC Referee on August 5, 2013. Claimant appeared and testified as follows as to why he filed his appeal beyond the fifteen day time limit:
The Referee found that Claimant earned $11,160 for the fourth quarter of 2011, $4,783 for the first quarter of 2012, $11,160 for the second quarter of 2012, and $9,566 for the third quarter of 2012. (Referee Decision, Findings of Fact (FOF) ¶ 8, R. Item 12.) The Referee found that "[t]he increases in the claimant's quarterly wages in the second quarter 2012 and third quarter 2012 do not effect the claimant's highest quarter or weekly benefit rate." (Referee Decision, FOF ¶ 9.) Claimant contends that his actual wages were $10,400 for each of these quarters. (Claimant's Br. at 9.)
R: Did you - let me just ask you this question, Mr. Rabe. Did you file an appeal to the Referee's Decision on or before May 31, 2013.
C: No.
R: Okay. Do you want to expand on that why you didn't file an appeal on or before that date.
C: Right. Exactly. I would say sometime approximately May 17th I did receive a letter indicating that the Referee had found in my behalf and at the same time there were other circumstances that were going on. Mainly, as of March 27th I had - I began not receiving any unemployment benefits, so from March 27th until my benefits were reinstated as a result of a Referee's Decision which is a total of seven weeks, I was without any income and actually during the last week, I
had a total of less than $5 in my checking account and in conjunction with that, I had court cases in Allegheny County which are civil in nature and also Westmoreland County. As a result of the circumstances that have surrounded this case, I just wasn't ready to respond to the letter that I received. I was not ready to write a letter saying that . . .(Hr'g Tr. at 5-6, R. Item 20.)
R: When you say not ready, what do you mean?
C: Well, emotionally I just wasn't ready to write a letter when I just was given my benefits stating that the facts of this case are yet - are not yet right.
. . . .
R: Okay. . . . You're - - as I'm understanding, it is your complete testimony to filing the appeal was that you were not ready emotionally to write a letter of appeal. Is that correct?
C: Yes.
R: Okay.
C: And I was under financial stress at the time.
R: Okay. Do you have anything else, sir?
C: No.
During the hearing, the UC Referee asked Claimant what he was appealing and Claimant responded that the Notice he received incorrectly stated his income. (Hr'g Tr. at 5.) The UC Referee then asked Claimant if he realized that if his annual income was as Claimant reported it to be, there would be a reduction in his $448 weekly benefit rate. (Hr'g Tr. at 5.) Claimant responded in the affirmative to this question. (Hr'g Tr. at 5.)
Based upon Claimant's testimony, the Board determined that Claimant's explanation that he was "not feeling 'emotionally ready' to file an appeal due to normal circumstances of life is not good cause for his late appeal." (Board Op. at 2.) The Board determined further that "[t]he 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." (Board Op. at 2.) Accordingly, the Board dismissed Claimant's appeal as untimely pursuant to Section 502 of the Law. Claimant now petitions this Court for review of the Board's Order.
"The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed or whether the findings of fact are supported by substantial evidence in the record." Western and Southern Life Insurance Co. v. Unemployment Compensation Board of Review, 913 A.2d 331, 334 n.2 (Pa. Cmwlth. 2006).
On appeal, Claimant does not challenge the Board's findings that he received the UC Referee's Decision at his last known post office address and he was notified that he had fifteen days, or until May 31, 2013, to appeal the UC Referee's Decision. (FOF ¶¶ 2-3.) Claimant also does not dispute that his appeal to the Board from the UC Referee's Decision was untimely. Instead, Claimant repeats the explanation that he gave the Board for his delay; specifically, that he was too emotionally fatigued to file a timely appeal. Additionally, Claimant now asserts that he was prompted to file his appeal late on June 5, 2013 by a telephone call from an UC representative on June 4, 2013.
Claimant contends that he received another Notice on May 29, 2013, which also listed his weekly benefit rate as $448, to which he promptly responded by completing and returning a form requesting his financial information on June 1, 2013. Claimant contends further that he then received a voicemail from a UC representative on June 4, 2013 advising him that he needed to appeal the May 16, 2013 UC Referee's Decision and not complete another financial determination form. Claimant states that his financial information has not changed since he appealed the March 18, 2013 Notice to the UC Referee. While conceding that his appeal from the May 16, 2013 UC Referee's Decision affirming the March 18, 2013 notice was untimely, Claimant asserts that he did submit an appeal and it is his hope that this Court "will consider the 'intent' of [his] response despite one lapse in timeliness." (Claimant's Br. at 4.)
Claimant's contention that he was advised to file an appeal by a UC representative rather than complete another request for financial information appears to imply that there was some sort of administrative breakdown that caused the delay in filing his appeal. However, Claimant did not present any evidence during the UC Referee's hearing to support his contention; therefore, we decline to conclude that the delay was caused by an administrative breakdown or negligence by the UC authorities. Moreover, although we commend Claimant's efforts to resolve what he believes is an inaccurate benefit rate, even though the alleged error is in his favor, the Board's determination is legally correct that Claimant's assertion that his untimely appeal was the result of being emotionally fatigued by the events that occurred during the appeal period is not the type of non-negligent conduct that warrants consideration of an untimely appeal.
Accordingly, the Board's Order is affirmed and Claimant will continue to receive weekly UC benefits in the amount of $448.
It appears from the record that Claimant was awarded UC benefits after his discharge from his former employer as a result of an UC Referee's decision. (Hr'g Tr. at 5.) --------
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 24, 2014, the Order of the Unemployment Compensation Board of Review entered in the above-captioned matter is AFFIRMED.
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RENÉE COHN JUBELIRER, Judge