Opinion
No. 1404 C.D. 2014
04-13-2015
Javell G. Rosser, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Javell G. Rosser (Claimant) petitions, pro se, for review of the August 1, 2014 order of the Unemployment Compensation Board of Review (Board) dismissing Claimant's appeal as untimely pursuant to section 502 of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822. Section 502 of the Law provides that a party has fifteen days to file a timely appeal from a referee's decision.
Claimant was employed by Alternative Community Resource Program (Employer) as a Therapeutic Support Staff (TSS) at $10.50 per hour from January 19, 2010, until August 23, 2013, when Claimant was temporarily laid off by Employer because of a decrease in available work. Beginning November 1, 2013, Employer attempted to return Claimant to work without success. Employer left a voicemail on Claimant's phone informing Claimant of his work schedule for November 25 through November 27, 2013. Claimant did not report or call off from these work shifts. By letter dated December 4, 2013, Employer discharged Claimant based on job abandonment. After receiving the termination letter, Claimant informed Employer's human resources director that he had not been available for work during that time because he had been assisting his significant other, who was having a baby. (Referee's Findings of Fact Nos. 1-3, 5-8; Record Items Nos. 3, 8, 16.)
Claimant filed an application for unemployment compensation benefits, and the local service center denied Claimant's application, finding that Claimant was ineligible for benefits pursuant to section 402(e) of the Law. Claimant appealed, and a referee held a hearing on January 30, 2014.
We note that Claimant filed an application for emergency unemployment compensation benefits under the Emergency Unemployment Compensation Act of 2008, Title IV of the Supplemental Appropriations Act of 2008, Act of June 30, 2008, P.L. 110-252, as amended, Sections 4001-4007, 26 U.S.C. §3304 note. Eligibility requirements for regular unemployment compensation benefits are equally applicable to emergency unemployment compensation claims. McKenna v. Unemployment Compensation Board of Review, 981 A.2d 415, 417 (Pa. Cmwlth. 2009).
43 P.S. §802(e). Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any week in which his unemployment is due to his discharge from work for willful misconduct connected with his work.
Claimant did not appear for the January 30, 2014 hearing. The referee proceeded with the hearing, stating that the notice mailed to Claimant's last known address was not returned as undeliverable and that Claimant had not contacted the referee's office to seek a continuance.
James Drapchak (Drapchak), Employer's human resources director, testified that Employer did not have any work available for Claimant from August 23, 2013, until November 2013. Drapchak stated that Claimant did not return to work when Employer recalled him on November 25 through November 27, 2013, and that Employer made numerous attempts to contact Claimant. Drapchak testified that after Claimant received the December 4, 2013 termination letter, Claimant called Drapchak and said that he was unavailable for work because his girlfriend was having their baby. (Record Item No. 8.)
Matthew Errett (Errett), Employer's program director, testified that Employer first attempted to assign work to Claimant on November 1, 2013. He stated that Employer left voicemails for Claimant that were unreturned. Errett testified that continuing work was available for Claimant when he abandoned his position. (Record Item No. 8.)
By decision and order dated January 31, 2014, the referee concluded that Claimant abandoned his employment by not reporting or calling off from work on November 25 through November 27, 2013. Thus, the referee held that Claimant was ineligible for benefits under section 402(e) of the Law.
Claimant appealed to the Board on March 14, 2014, more than fifteen days after the referee issued his decision. On April 2, 2014, the Board issued a letter to Claimant advising him that he must request a hearing on the timeliness of his appeal within fifteen days of the letter's mailing date if he wished to be heard on the matter. Claimant requested a hearing, (Record Items Nos. 11-12), and the Board remanded the matter to the referee to act as the Board's hearing officer to receive testimony regarding the timeliness of Claimant's appeal. The Board allowed Claimant to offer testimony and/or evidence regarding his non-appearance at the January 30, 2014 hearing and the merits of the case, which would only be taken into consideration if the Board found Claimant's appeal was timely and if the Board found good cause for Claimant's non-appearance. (Record Item No. 14.)
At the May 13, 2014 remand hearing, Claimant testified that the unemployment office notified him that mail sent to his address of record, 153 C Street, 1st Floor, Johnstown, PA, was being returned as undeliverable. He testified that, although the notices were returned as undeliverable, the post office had been incorrectly forwarding his mail to a David Street address instead of his address of record. He asserted that he had a valid excuse for his late-filed appeal because of the delivery problems with his mail. Claimant stated that he had visited the unemployment office and was notified that it was not too late to appeal the referee's order. Claimant also testified that he did not appear at the January 30, 2014 hearing, because he never received notice. (Record Item No. 16.)
As to the merits, Claimant testified that he called Drapchak after receiving the December 4, 2013 termination letter. Claimant stated that he told Drapchak he did not intend to abandon his job, but Claimant acknowledged that he asked Employer to allow him to resign. Claimant said that he attended meetings when he was not working and asserted that he could not have abandoned his employment when he had been laid off by Employer. Claimant also stated that he did not have any missed calls or voicemails from Employer in November 2013, and said that he never contacted Employer about his unavailability because he was not allowed to have his phone in the hospital. (Record Item No. 16.)
On June 16, 2014, the Board issued another remand order so that the record could be completely developed on the merits, and, in an accompanying memo, directed that Claimant present medical documentation that his significant other had a baby and provide answers for a specific list of questions. (Record Items Nos. 17-18.) The hearing was scheduled for July 16, 2014.
The questions the Board sought to have answered were as follows:
1. What was the claimant's last day of work?(Record Item No. 17.)
2. Did the claimant make the employer aware that he was absent from work because his significant other was having a premature baby?
3. Was the claimant the father of this baby?
4. Did the claimant request a leave of absence in order to assist the significant other with the baby?
5. Was the baby still hospitalized when the claimant was absent from work?
6. Why could the claimant not report to work and/or why could the claimant not report off from work?
Although the notice of the hearing had not been returned as undeliverable, Claimant failed to appear for the July 16, 2014 remand hearing. The referee proceeded with the hearing, noting that Claimant had not communicated with the unemployment office regarding a delay or the need for a continuance. The referee received additional testimony from Drapchak in an attempt to comply with the Board's order. (Record Item No. 20.)
By correspondence dated July 17, 2014, Claimant informed the referee the he mistakenly appeared for the July 16, 2014 hearing on July 17, 2014, and he requested another hearing. (Record Item No. 21.) Claimant's request was not granted.
By decision and order dated August 1, 2014, the Board found that Claimant filed his appeal from the referee's decision on March 14, 2014, beyond the filing deadline of February 18, 2014. The Board determined that Claimant's testimony that he was not receiving his mail was not credible. The Board concluded that Claimant's late-filed appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or by non-negligent conduct. Thus, the Board dismissed Claimant's appeal as untimely pursuant to section 502 of the Law.
We note that it appears Claimant was mailed at least one copy of the notice of hearing and two copies of the referee's decision that were returned as undeliverable. However, contrary findings would not alter the disposition of this case.
On appeal to this Court, Claimant does not challenge the Board's determination that his appeal was untimely. Instead, in his Statement of Questions Involved, Claimant asks the following: (1) "Whether [Employer] erred in using their [sic] [Employer] protocol by not contacting [Claimant] [sic] phoning him directly, emergency contact, mail, and email?" and (2) "What gave [Employer] the grounds to change my employment status to lay-off to abandoning my position?" (Claimant's brief at 4.)
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially, we address the substantial defects in Claimant's brief. Pa.R.A.P. 2101 expressly mandates the following:
Briefs and reproduced records shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed.Id. It is well settled that "substantial omissions, defects, and/or failures to conform to the minimal requirements for writing an appellate brief set forth in Chapter 21 of the Pennsylvania Rules of Appellate Procedure will result in the quashing or dismissal of the appeal." Lal v. Commonwealth, Department of Transportation, 755 A.2d 48, 49 (Pa. Cmwlth. 2000) (dismissing the appeal sua sponte for not substantially complying with the Pa.R.A.P). A petitioner's brief must contain both a Summary of Argument section and an Argument section. Pa.R.A.P. 2111(a)(6), (8); Pa.R.A.P. 2118 ("The summary of argument shall be a concise, but accurate, summary of the arguments presented in support of the issues in the statement of questions involved."); Pa.R.A.P. 2119 ("The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.").
Claimant's brief does not include an Argument section. See Pa.R.A.P. 2111(a)(8). Claimant also does not assert any arguments in his Summary of Argument section, which states in its entirety as follows:
On July 16th 2014 a Remand hearing was scheduled the purpose was to fully develop the merits with regard to the merits of the case the referee was informed to have me provide medical documentation to indicate my significant other had a baby. The referee was also informed that he should try to limit the introduction of repetitious or irrelevant matter, answers to the following questions in addition
1. What was the claimants [sic] last day of work?
2. Did the claimant make the employer aware that he was absent from work because his significant other was having a premature baby?
3. Was the claimant the father of this baby?
4. Did the claimant request a leave of absence in order to assist the significant other with the baby?
5. Was the baby still hospitalized when the claimant was absent from work?
6. Why could the claimant not report to work and/or why could the claimant not report off from work?
I arrived at the referee's office July 17th 2014 along with my evidence to answer the above questions along with providing my documents stating my status of employment and also proof of paternity to prove I did not abandon my position with [Employer]. Due to me missing the hearing on the 16th of July the referee informed [sic] to file an appeal.(Claimant's brief at 6.)
Although we are generally inclined to construe pro se filings liberally, Means v. Housing Authority of City of Pittsburgh, 747 A.2d 1286, 1289 (Pa. Cmwlth. 2000), we adhere to the principle that a "lay person who chooses to represent himself in a legal proceeding must assume the risk that his lack of expertise and legal training may prove to be his undoing." Daly v. Unemployment Compensation Board of Review, 631 A.2d 720, 722 (Pa. Cmwlth. 1993). Claimant has failed to include an Argument section in his brief and to summarize his argument in the Summary of Argument section in accordance with Pa.R.A.P 2111(a)(6), (8), 2118, and 2119.
Moreover, Claimant has not included any of the requirements found in Pa.R.A.P. 2117, i.e., a brief procedural history and a chronological statement of the facts in his Statement of the Case, and also has not attached the referee's decision to his brief in violation of Pa.R.A.P. 2111(b). We note again that "the Rules of Appellate Procedure relating to the form and content of briefs . . . are mandatory." Lal, 755 A.2d at 52. More important, the substantial defects in Claimant's brief impede our ability to conduct any meaningful appellate review.
Instead, Claimant's Statement of the Case includes only the following:
According to Memo from Matt Errett (Supervisor/Program Director) "it cannot be [d]etermined to what level he will be assigned hours". My lay off memo did not state [a]ny requirements for me to "check in, call in, muster in any fashion". I received a termination letter December 4, 2013 from [Employer] stating I have not [r]eturned any of the phone calls they have not made to me nor have I reported off from work or called to request work as the [Employer] policy requires. I did not receive any [c]orrespondence from [Employer] informing me of possible employment dates, so I was [u]naware that dates were available. According to my lay-off memo I was not required to call in to request work nor was I informed of any written policy that required me to request work. I want [Employer] to prove that they attempted to contact me using my [p]rimary number, emergency contact, mail and email.(Claimant's brief at 5.) --------
We note that even if Claimant had substantially complied with the applicable briefing requirements, he could not have prevailed in this appeal. Claimant has appealed from the Board's August 1, 2014 order dismissing his appeal from the referee's decision as untimely. However, in his brief Claimant argues only the merits of the referee's decision, which were not addressed by the Board and are not before us on appeal. "Arguments not properly developed in a brief will be deemed waived by this Court." Rapid Pallet v. Unemployment Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998). It is not our role to act as the claimant's counsel, and we will not consider the merits of a case when the brief is inadequate for appellate review of specific issues. Grosskopf v. Workmen's Compensation Appeal Board (Kuhns Market), 657 A.2d 124, 125 (Pa. Cmwlth.), appeal denied sub nom., Grosskopf v. Kuhns Market, 668 A.2d 1139 (Pa. 1995). Thus, Claimant has waived any argument regarding the timeliness of his appeal and has not provided any basis for this Court to disturb the Board's August 1, 2014 decision and order. Rapid Pallet.
Accordingly, we quash this appeal pursuant to Pa.R.A.P. 2101.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 13th day of April, 2015, the appeal of Javell G. Rosser from the August 1, 2014 order of the Unemployment Compensation Board of Review is quashed.
/s/_________
PATRICIA A. McCULLOUGH, Judge