Opinion
No. 2448 C.D. 2010
04-18-2012
Erick B. Taylor, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer before Judge Pellegrini succeeded Judge Leadbetter as President Judge.
Claimant Erick B. Taylor petitions for review of the order of the Unemployment Compensation Board of Review (Board) that dismissed his appeal from the referee's decision and order as untimely under Section 502 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. § 822. Section 502 provides, in pertinent part, that the referee's decision shall be deemed the final decision of the Board unless an appeal is filed within fifteen days after the date of such decision.
It is undisputed that Taylor was receiving unemployment compensation benefits following a non-disqualifying separation from work. According to Taylor's appellate brief, he would secure occasional, casual employment and report any earnings derived therefrom to the unemployment authorities and his weekly benefits would be reduced accordingly. Relevant to the instant appeal, the referee's findings indicate that Taylor interviewed for a permanent position with Spencer Advertising and in connection therewith, was asked if he would be willing to participate in a strategic planning meeting for one of Spencer's clients. Both parties understood that although Spencer was considering Taylor as a potential employee, Spencer would pay Taylor $500 for his services as a consultant at the meeting. Taylor agreed and provided the requested services to Spencer on February 1, 2010, for which he submitted an invoice and was paid $500. Spencer intended to provide Taylor with a Form 1099 at the end of the year with respect to his services.
In general, an employer issues a Form W-2 to an employee to report, inter alia, the wages, tips or other compensation paid to the employee. A Form 1099-MISC, on the other hand, is generally used to "report payments made in the course of a trade or business to a person who is not an employee . . . ." See http://www.irs.gov/faqs/faq/0,,id=199636,00.html (frequently asked questions: "What is the difference between a Form W-2 and a Form 1099-MISC?").
Apparently, after Taylor reported his earnings from Spencer to the unemployment compensation authorities, the Department of Labor and Industry, Bureau of UC Benefits and Allowances, by letters dated April 6, 2010, sent questionnaires to both Taylor and Spencer in order to determine Taylor's continuing eligibility for benefits. See Original Record (O.R.), Items 2 and 3. Due to a lack of information regarding whether Taylor was free from Spencer's direction and control, the local UC Service Center determined that Taylor was not disqualified from receiving benefits under Section 402(h) of the Law, 43 P.S. § 802(h). Spencer appealed the determination, contending that Taylor was an independent contractor rather than an employee and that it "should not be potentially chargeable." Original Record (O.R.), Item 6.
Apparently, neither party returned a completed questionnaire.
Section 402(h) provides that an employee is ineligible for compensation for any week in which he is engaged in self-employment.
As a general rule, whenever a claimant receives benefits, his former employers are charged for the amount of benefits paid. See 34 Pa. Code § 63.31.
Following the subsequent hearing at which both parties appeared, the referee concluded that when Taylor performed services for Spencer, he was self-employed and acting as a consultant on an ad hoc basis. Accordingly, the referee held that Taylor was ineligible for benefits under Section 402(h), beginning with the compensable week ending February 6, 2010. The referee's decision and order, bearing a mailing date of June 16, 2010, and Appeal Number EUC-10-09-B-3795 (hereafter referred to as Appeal Number 3795), clearly stated that the decision would become final unless an appeal was filed within 15 days and, that, the "last date to file an appeal to this decision is 7/1/2010." O.R., Item 10.
Taylor did not file an appeal until July 14, 2010. In his pro se appeal papers, he indicated that he was appealing the determination of "July 1, 2010," a date not affiliated with any decision (although it is the same date that any appeal from the referee's decision needed to be filed). In a statement attached to his petition for appeal, Taylor stated: "I am appealing the determination of Self-Employment and the subsequent decision that I was overpaid Unemployment Compensation benefits." O.R., Item 11. Obviously construing Taylor's appeal papers as an appeal from the referee's June 16th decision and order, the Board advised Taylor that his appeal from that determination appeared to be untimely. Based upon the Board's guidance, Taylor requested a hearing on the timeliness of his appeal.
In that request, Taylor noted that following the referee's decision, he received a notice of determination of overpayment of benefits based upon the determination that he was self-employed. Apparently, the Department issued two notices of overpayment dated June 30, 2010, one in the amount of $5022 and the other in the amount of $275. See Exhibit C #1 (emphasis omitted) to Notes of Testimony, Hearing of September 14, 2010, O.R., Item 16; see also Attachment B and C to Board's Application for Summary Relief/Motion to Clarify. Both notices provided that the last day to appeal the determination was July 15, 2010.
During the hearing that followed, the referee noted that the timeliness of Taylor's appeal in Appeal Number 3795 was at issue. Before the referee, Taylor, again acting pro se, testified that he agreed that he was not Spencer's employee but disagreed with the conclusion that he was self-employed, stating as follows:
I am appealing the ruling that I am self-employed but I don't want to appeal the ruling that I was not an employee of Spencer Advertising. I was not an employee of Spencer Advertising. At the same time, I have not been self-employed. I believe it to be self-employed the customary way of self-employment would be seeking employment on a regular basis for self-employment and I did it one time. . . .Notes of Testimony (N.T.) at 3, Hearing of September 14, 2010. Nonetheless, he confirmed that he had not appealed from the referee's June 16th decision and order but was appealing from the subsequent notice of overpayment stemming from the conclusion of self-employment. Notably, the following exchange occurred:
[Taylor]: [T]he appeal that we're discussing about - that we're talking about is the appeal that I was overpaid benefits based upon self-employment. That document I had to have sent - I had to send in the information by July 15th and I - it was received on July 16th and actually there's a note there that it was mailed on the 14th. So what I'm appealing is that.N.T. at 3-4, Hearing of September 14, 2010, O.R., Item 16.
[Referee]: Okay.
[Taylor]: Not the Referee's Decision. . . . So obviously I was timely.
. . . .
[Referee]: Okay now I will mark this Notice of Determination as Claimant's #1 and I take it that this is the Determination that you wish to appeal.
[Taylor]: Um-hm.
Still construing Taylor's appeal as one from the referee's June 16th decision and order, the Board held that the appeal was untimely and dismissed it. In doing so, the Board also found that the untimely appeal was not caused by fraud or its equivalent, non-negligent conduct or a breakdown in the appellate system. This appeal followed.
On appeal, Taylor first argues that the Board erred in dismissing his appeal as untimely because the determination that he intended to and did timely appeal was the June 30, 2010, Notice of Determination of Overpayment. According to Taylor, he has a separate right to appeal the determination of overpayment. He also notes that although he chose not to appeal the referee's decision "because he did not consider the loss of compensation in the amount of $500 to warrant an appeal," he contends that he was not informed that an overpayment determination could result from the decision and did not receive notice of overpayment until the time to appeal the referee's decision had passed. Taylor's appellate brief at 18. While not specifically arguing that nunc pro tunc relief is warranted, he suggests that in such circumstances, the appeal period should not begin until the notice of overpayment is given. See also, Taylor's appellate brief at 20 (stating: "The claimant considered an appeal of this decision, but elected against it on a rational conclusion that the cost of an appeal exceeded the cost of not appealing. However, when the Board's decision was applied to create an overpayment of over $5,000.00, the claimant was left with no alternative but to appeal.).
Although he mentions only the notice regarding the overpayment in the amount of $5022, it appears that he timely appealed both notices.
This case was initially directed to be decided on the appellate briefs without oral argument. Subsequently, however, the court directed the matter to be listed for oral argument and counsel to be prepared to address various issues at argument. The Board then filed an application for summary relief, contending, inter alia, that its dismissal of Taylor's appeal concerned only an appeal from the June 16, 2010 decision and order and not the notices of overpayment. Moreover, the Board avers that Taylor's appeals from the notices of overpayment have been stayed pending a final decision in this matter. According to the Board, Taylor's belated appeal of the June 16 decision cannot be permitted nunc pro tunc requiring that the instant appeal be dismissed. That application is presently before us as well.
In his response to the Board's application for summary relief, Taylor "admits" the averment that on July 14, 2010, he "filed an appeal with the Board to both [the referee's] June 16, 2010 decision and the Department's June 30, 2010 overpayment determinations. See Petitioner's Response to Respondent's Application for Summary Disposition/Motion for Clarification at 11 ¶5.
Taylor is correct that a separate appeal lies from the determination of overpayment. See Section 804(b)(2) of the Law, 43 P.S. § 874(b)(2). However, the present appeal simply does not encompass review of the notices of overpayment. Those determinations apparently have not proceeded through the administrative appeal process. Indeed, both parties agree that Taylor's appeals therefrom have been stayed pending resolution of the appeal from the referee's decision and order. See Application for Summary Relief/Motion to Clarify ¶9; Petitioner's Response to Respondent's Application for Summary Disposition/Motion for Clarification at 11-12 ¶7. Accordingly, the Board did not commit error in dismissing Taylor's appeal without addressing any issues related to the notices of determination.
The Board also acted properly in failing to hear Taylor's appeal from the referee's decision nunc pro tunc. The statutory appeal period is mandatory and, when not complied with, deprives the Board of jurisdiction over the appeal. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000 (Pa. Cmwlth 2010); Roman-Hutchinson v. Unemployment Comp. Board of Review, 972 A.2d 1286 (Pa. Cmwlth. 2009). An appeal nunc pro tunc may be allowed "only where a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to an appellant or his or her counsel or a third party." Russo, 13 A.3d at 1003 (internal quotations and authority omitted).
Here, the only justification for the untimely appeal is that Taylor did not realize the consequences of the referee's decision. In Wojciechowski v. Commonwealth, Unemployment Comp. Board of Review, 407 A.2d 142 (Pa. Cmwlth. 1979), this court held in very similar circumstances that, the lack of notice to the claimant that the referee's decision could result in claims for reimbursement of compensation paid, did not justify a late appeal. In doing so, we specifically opined that due process does not require that referees advise pro se claimants on specific points of law. Id. Accordingly, as the record is devoid of circumstances warranting nunc pro tunc relief, the Board's order is affirmed.
Consequently, we deny the application for summary relief as moot. While we agree that the Department is not legally obligated to give claimants notice of all consequences stemming from an adverse decision, it appears that it would not be too burdensome to add a statement at the bottom of the referee's decision in the area where appeal rights are explained to the parties, such as: "The failure to appeal an adverse decision could jeopardize a claimant's right to receive unemployment compensation benefits in the future. Consultation with an attorney might be helpful to any party in deciding whether to appeal an adverse decision." Unfortunately, had Taylor perfected a timely appeal, a different result may have occurred. See generally Minelli v. Unemployment Comp. Bd. of Review, ___ A.3d ___ (Pa. Cmwlth. 2012) (2012 WL 402555); Silver v. Unemployment Comp. Bd. of Review, 34 A.3d 893 (Pa. Cmwlth. 2011). --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 18th day of April, 2012, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. In addition, the application for summary relief, filed by the Unemployment Compensation Board of Review, is denied as moot.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge