Opinion
No. 688 C.D. 2012
09-12-2012
Quyne K. Rider, 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
Quyne K. Rider (Claimant) challenges the determination of the Unemployment Compensation Board of Review (Board) that Claimant's appeal to the Board was untimely under Section 502 of the Unemployment Compensation Law (Law) and that Claimant failed to request a hearing.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
Claimant applied for unemployment benefits on September 4, 2011. The Unemployment Compensation Service Center awarded benefits. Harrahs Chester Downs (Employer) appealed. The referee determined that Claimant was ineligible for benefits under Section 402(e) of the Law, 43 P.S. § 802(e).
The facts, as found by the Board, are as follows:
1. On December 1, 2011, the Referee issued a decision which denied the claimant benefits.Board Opinion, March 7, 2012, (Opinion), Findings of Fact Nos. 1-8 at 1-2.
2. A copy of the Referee's decision was mailed to the claimant at her last known post office address on the same date.
3. The decision was accompanied by notice advising that the interested parties had fifteen (15) days in which to file a valid appeal.
4. There is no indication that the decision mailed to the claimant was returned by the postal authorities as undeliverable.
5. The claimant's appeal from the referee's decision, in order to be timely, had to have been filed on or before December 16, 2011.
6. The claimant's appeal was filed on January 29, 2012.
7. On February 9, 2012, the Board advised the claimant in writing that her appeal appeared to be untimely and if she believed that the appeal was, or should be deemed, timely filed, she must reply in writing and request that a hearing be held to provide an opportunity for testimony regarding the timeliness of the appeal.
8. The claimant sent a written response to the Board, but did not request a hearing on the timeliness issue.
The Board determined:
The last day to file an appeal from this decision was December 16, 2011. However, the claimant did not file an appeal until January 29, 2012. 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.
Pursuant to 34 Pa. Code § 101.61, the appeals of parties who are notified in writing by the Board that their appeals appear to be untimely and who do not reply or request a hearing on the issue of timeliness within 15 days shall be dismissed. Here, the claimant has not requested a hearing after proper notification from the Board.Opinion at 2.
Claimant contends that the Board failed to consider pertinent evidence, committed errors of law, relied on material misrepresentations by Employer, violated Claimant's constitutional rights, and that Employer should be required to pay punitive damages.
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 essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Initially, this Court notes that the issue before this Court is whether the Board properly dismissed Claimant's appeal as untimely and that Claimant was required to request a hearing and failed to do so. Most of the issues raised by Claimant do not address this key question and need not be addressed by this Court.
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 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).
Further, the Board's regulation, 34 Pa.Code §101.61(a), provides:
If an appeal from a decision of the Department or an application for further appeal appears to have been filed beyond the applicable time limit, the tribunal shall advise the appealing party in writing that it appears not to have a jurisdiction because of the late filing, and that the appeal or application for further appeal will be dismissed without a hearing unless the appealing party notifies the tribunal in writing within the succeeding 15 days from the date of such notice, that he contends the appeal or application for further appeal was timely filed and that he desires a hearing. If no reply from the appealing party is received within the 15-day period, or if the appealing party does not request a hearing, the tribunal shall dismiss the appeal or application for further appeal.
In Han v. Unemployment Compensation Board of Review, 42 A.3d 1155 (Pa. Cmwlth. 2012), this Court addressed the very same issue. A referee denied Chang S. Han (Han) benefits on March 18, 2011. Han's appeal had to be filed on or before April 4, 2011. Han did not file an appeal until May 5, 2011. On May 19, 2011, the Board advised Han that his petition for appeal appeared to be untimely and that if he believed the appeal was or should have been deemed timely filed, he was required to reply in writing and request a hearing. Han sent a written response but did not request a hearing. The Board dismissed the appeal as untimely pursuant to Section 502 of the Law, 43 P.S. §822, and 34 Pa.Code §101.61(a). Han, 42 A.3d at 1156.
Han petitioned for review with this Court. One of the issues he raised was that the Board erred when it dismissed his appeal under 34 Pa.Code §101.61(a) because he did not request a hearing. Id.
This Court affirmed:
It is well settled that the Board is restricted to reviewing the evidence submitted by the referee unless it takes additional evidence under section 101.106 of the regulations. . . . Thus '[p]ost-hearing factual communications to the Board by a party cannot be considered by it in its determination, not only for due process consideration, but also under the limiting language of [section 101.106]. . . .' . . . .
The foregoing shows precisely why the Board instructed Claimant [Han] in the letter to request a hearing on the timeliness of his appeal: the Board is without jurisdiction to further consider this matter under section 502, and it is precluded from considering the facts underlying the timeliness of Claimant's [Han] appeal unless they are
adduced at a hearing on that issue. Claimant [Han] prevented the Board from considering his claims regarding the timeliness of his appeal by failing to request such a hearing and, as a result, we are constrained to conclude that the Board did not err in dismissing his appeal as untimely. . . . (Citations and footnote omitted).Han, 45 A.3d at 1157-1158.
Here, as in Han, Claimant failed to timely appeal the referee's decision to the Board. The Board informed Claimant:
If you believe that you filed your appeal within the fifteen (15) day period or that it should be deemed timely for other reasons, you must request the Board by letter that a hearing be scheduled to allow opportunity to set forth your reasons as to why your believe your appeal was timely filed. (Emphasis in original).Letter from Randall S. Brandes, Unemployment Compensation Appeals Administrator, February 9, 2012, at 1.
Like Han, Claimant submitted a written response but did not request a hearing in that response. She set forth reasons why she did not appeal in a timely manner and addressed the merits of her appeal. In her brief Claimant does not challenge the Board's determination that she failed to request a hearing.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge Judge McCullough dissents. ORDER
AND NOW, this 12th day of September, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge