Opinion
No. 2077 C.D. 2014
05-15-2015
Sergio Artrell Gia Berte Davis, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Sergio Artrell Gia Berte Davis (Claimant) challenges the Order of the Unemployment Compensation Board of Review (Board) which affirmed the Referee's denial of benefits under Section 501(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e).
The Board made the following relevant findings of fact:
1. The claimant filed an application for benefits with an effective date of March 23, 2014 and provided a mailing address of 111 Creekwood Drive, Woodstock GA 30188.
2. The claimant moved from Georgia to Colorado less than one week after he filed his application for benefits.
3. The claimant did not notify the Department of his updated address.
4. The claimant placed a forwarding order with the US Postal Authorities.
5. Under Section 7 of the UC handbook the claimant was informed of the following responsibility:
Update Your Contact Information: If your mailing address, telephone number or email address changes, inform the UC service center ( www.us.pa.gov ) and the PA CareerLink® system ( www.jobgateway.pa.gov ) immediately, even if you are not filing claims for benefits at that time. Keeping the UC service center aware of your current contact information will ensure that you receive correspondence from the department. It is important that you receive and read all correspondence about your UC claim.
6. According to the claim record...on April 4, 2014, the claimant contacted the Department and spoke to a representative about the financial determination that was mailed to him on March 26, 2014; the claimant indicated that he disagreed with it and his appeal rights were explained.
7. Again, the claimant did not notify the Department of his change of address.
8. A Notice of Determination (determination) was issued to the claimant on April 21, 2014, denying benefits under Section 402(b) of the Law.
9. A copy of this determination was mailed to the claimant at his last known post office address in Woodstock, GA on the same date.
10. The claimant's mother still lives at that address, however, she was out of the country at that time.
11. There is no evidence to indicate that the determination sent to the claimant was returned as undeliverable by the postal authorities.
12. The notice informed the claimant that May 6, 2014, was the last day on which to file an appeal from this determination.Board's Opinion (Opinion), October 9, 2014, Findings of Fact Nos. 1-14 at 1-2. (Emphasis added.)
13. The claimant filed his appeal by fax on July 19, 2014.
14. There is no evidence that the claimant was misinformed or misled by the unemployment compensation authorities regarding his right or the necessity to appeal.
The Board determined:
In this case, the appeal was filed by fax on July 19, 2014, which was after the expiration of the statutory appeal period. The provisions of this section of the Law are mandatory; the Unemployment Compensation Board of Review (Board) and its Referees have no jurisdiction to allow an appeal filed after the expiration of the statutory appeal period absent limited exceptions not relevant herein. The 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. Rather, the late appeal appears to have been caused by the claimant's failure to change his address with the Department. Therefore, the Referee properly dismissed the claimant's petition for appeal.Opinion at 2-3. (Emphasis added.)
Claimant contends that the Board failed to notify him via electronic transmission about the status of his claim.
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).
A review of the record reveals that Claimant failed to raise this issue before the Referee. Rule 1551 of the Pennsylvania Rules of Appellate Procedure states that "[r]eview of a quasijudicial order shall be conducted by the court on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit...." Because Claimant failed to preserve the issue of whether the Board failed to notify him via electronic transmission about the status of his claim on appeal, the issue is waived.
Assuming arguendo that this issue was preserved, 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). Here, notice was mailed to Claimant's last known post office address and unreturned which was sufficient to notify Claimant about the status of his claim.
Section 501(e) of the Law, 43 P.S. §821(e), provides that appeals from determinations contained in any notice required to be furnished by the department must be taken "within fifteen calendar days after such notice was delivered...or was mailed to...(claimant's) last known post office address."
This Court has repeatedly and consistently held that the statutory time limit established for the filing of appeals is mandatory. The appeal period may be extended beyond the statutory limit only where, through acts constituting fraud or its equivalent, the compensation authorities have deprived a claimant of the right to appeal. Shimko v. Unemployment Compensation Board of Review, 422 A.2d 726 (Pa. Cmwlth. 1980). 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).
In the present case, it is undisputed that on August 19, 2014, the Referee issued a decision which dismissed Claimant's appeal because the statutory appeal period expired. The Board found that Claimant moved to Colorado less than one week after he filed his application for benefits but did not notify the Department of his updated address. A Notice of Determination was mailed to Claimant at his last known post office address in Woodstock, Georgia, and was not returned as undeliverable.
Claimant had fifteen days to appeal the April 21, 2014, determination that denied benefits under Section 402(b) of the Law. The last day to timely appeal was May 6, 2014. Claimant did not file his appeal until July 19, 2014. The Board did not err when it determined that Claimant's appeal was untimely.
In his Statement of Questions Involved, Claimant also argues that the Board erred in its procedural duty to contact the Employer during the initial claim process. The crucial issue before this Court is whether Claimant was precluded from filing a timely appeal because he did not receive notice of the Department's determination due to the wrongful or negligent conduct of the unemployment compensation authorities. This Court addressed this issue above. --------
Accordingly, the decision of the Board is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 15th day of May, 2015, the decision of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge