Opinion
No. 479 C.D. 2014
10-28-2014
Robert S. Usdin, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Robert S. Usdin (Claimant) petitions for review, pro se, of the February 6, 2014, order of the Unemployment Compensation Board of Review (UCBR) affirming the decision of a referee to dismiss Claimant's appeal as untimely under 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). Section 501(e) of the Law states:
Unless the claimant or last employer or base-year employer of the claimant files an appeal with the [UCBR], 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).
On October 8, 2013, the Department of Labor and Industry (Department) denied Claimant's application for unemployment compensation (UC) benefits and found him liable for a fault overpayment. (Findings of Fact, No. 1.) On the same date, the Department mailed four notices of determination to Claimant's last known post office address, none of which were returned by postal authorities as undeliverable. (Id., Nos. 2-3.) The notices informed Claimant that he had 15 days from the date of the notices to file an appeal. (Id., No. 4.) Claimant was required to file an appeal by October 23, 2013. (Id., No. 5.) Claimant did not file an appeal until November 19, 2013, because he was busy with other matters. (Id., Nos. 6, 8.) Claimant was neither misinformed nor misled about his right of appeal or the need to file an appeal. (Id., No. 7.)
The UCBR adopted and incorporated the referee's findings of fact and conclusions of law.
The referee held a hearing on December 17, 2013, at which Claimant appeared pro se and testified on his own behalf. After the hearing, the referee concluded that Claimant failed to adequately justify his untimely appeal and, therefore, dismissed the appeal under section 501(e) of the Law.
Claimant appealed to the UCBR, which affirmed. The UCBR concluded that "[C]laimant's testimony that he was often out of town and had difficulty keeping track of his mail does not meet his heavy burden [of proving] either that he was misled by the Department or that non-negligent conduct prevented him from filing a timely appeal." (UCBR's Order at 1.) Claimant now petitions for review of that decision.
Our scope of review is limited to determining whether the findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether an error of law was committed. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. --------
On appeal, Claimant concedes that his appeal was untimely filed but asserts that a breakdown in the administrative process justified his untimely filing. Specifically, he claims that the Department failed to initially inform him that his appeal was untimely filed. He also claims that, at the hearing, the referee misled Claimant into believing that the appeal would be considered on the merits. We reject these claims.
It is well settled that the 15-day time limit for appealing a Department determination is mandatory. UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344, 347 (Pa. Cmwlth. 2001). If a claimant fails to appeal within the 15-day period, "the determination becomes final, thereby depriving the [UCBR] of jurisdiction over the matter." Id. However, the UCBR may grant an appeal nunc pro tunc if the claimant can prove fraud or a breakdown in the administrative process. Stana v. Unemployment Compensation Board of Review, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). The claimant bears a "heavy burden" to justify the grant of a nunc pro tunc appeal. Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008).
At the hearing, Claimant testified that when the Department mailed the notices of determination, he was traveling out of state for work and "did not have the time" to get his mail. (N.T., 12/17/13, at 3.) However, when asked whether he was out of state in October 2013, he stated that he was not. (Id. at 3-4.) Claimant further testified that because he was working 40-hour weeks at the time, "it was a bit of a burden to be managing that [work] project as well as being able to respond [to the notices]." (Id. at 4.) Based on Claimant's testimony, the UCBR correctly determined that his reasons for filing a late appeal were insufficient to satisfy his heavy burden of proof. Whether Claimant knew that his appeal was untimely or understood the consequences of an untimely appeal after the fact is irrelevant. Claimant was required to prove that fraud or a breakdown in the administrative process prevented him from filing a timely appeal, which he failed to do. See Hessou, 942 A.2d at 200 (stating that a claimant's failure to understand Departmental appeal procedures does not excuse an untimely filing).
We also reject Claimant's claim that the referee failed to inform him that the timeliness of the appeal would be considered at the hearing. The referee's notice of hearing listed the first issue to be considered as follows: "Section 501(e) [of the Law] - Whether appellant filed a timely and valid appeal from the initial determination." (C.R. Item No. 9.) Thus, Claimant was properly notified that this issue would be considered at the hearing.
Finally, Claimant asserts that the referee misled him by proceeding to receive evidence on the merits after questioning Claimant about the timeliness of the appeal. However, the hearing notice stated that the referee would consider the timeliness issue as well as Claimant's eligibility for UC benefits under the relevant sections of the Law. (C.R. Item No. 9.) Therefore, Claimant was neither misled nor misinformed about the objectives of the hearing.
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 28th day of October, 2014, we hereby affirm the February 6, 2014, order of the Unemployment Compensation Board of Review.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge