Opinion
No. 1149 C.D. 2011 No. 1150 C.D. 2011
01-30-2012
Ryan M. Wassil, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter's term as President Judge ended.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
In these consolidated cases, Petitioner Ryan M. Wassil (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated April 22, 2011, which affirmed a Referee's decision dismissing Claimant's appeal as untimely pursuant to Section 501(e) of the Unemployment Compensation Law (Law). For the reasons that follow, we affirm the Board's order.
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:
(e) Unless the claimant . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within fifteen calendar days after such notice . . . 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.
Claimant filed for unemployment compensation benefits following his discharge from Aqua Clear Pool and Spa, LLC (Employer). The Altoona UC Service Center (Service Center) issued a Notice of Determination which found Claimant ineligible for benefits under Section 402(b) of the Law, relating to voluntarily leaving employment without a compelling and necessitous cause. (Certified Record (C.R.), Item No. 4a.) The notice stated that the last day to file an appeal of the determination was January 19, 2011. (Id.) The Service Center also issued a Notice of Determination which established a fault overpayment under Section 804(a) of the Law. The notice stated that the last day to file an appeal pertaining to that determination was January 20, 2011. Claimant filed a timely appeal to the determination regarding a fault overpayment under 804(a) of the Law, but he filed an untimely appeal regarding his eligibility under Section 402(b) of the Law.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(a).
A Referee conducted a consolidated hearing on March 1, 2011, for the purpose of determining whether Claimant's appeal from the Notice of Determination pursuant to 402(b) was timely. (C.R., Item No. 9.) During the hearing, Claimant testified that he faxed his appeal to the Service Center on January 11, 2011, prior to its due date on January 19, 2011, from his home fax machine. (Id. at p. 4.) The Service Center informed Claimant that it did not receive his appeal. (Id. at p. 5.) According to Claimant, upon learning that the Service Center did not receive his appeal, Claimant refaxed his appeal. (Id.) Claimant could not provide any evidence or documentation to support his contention that he filed his appeal via fax transmission on January 11, 2011. (Id.) Employer did not appear at the hearing or present any evidence.
By decision and order dated March 2, 2011, the Referee dismissed the appeal pertaining to the denial of benefits under Section 402(b) of the Law as untimely. (C.R., Item No. 10a.) In addition, the Referee affirmed as modified the Service Center's decision regarding the fault overpayment under Section 804(a) of the Law. The Referee determined Claimant had an overpayment in the amount of $1,206.00, which was to be recovered in accordance with the non-fault provisions of Section 804(b) of the Law. (C.R., Item No. 10b.) In doing so, the Referee issued the following relevant findings of fact:
1. On January 4, 2011, the Altoona Service Center issued a Notice of Determination which disapproved benefits for the Claimant under Section 402(b).
2. On January 5, 2011 the UC Service Center issued a Notice of Determination which assessed the Claimant an overpayment in accordance with Section 804(a) of the Law.
3. Copies of these determinations were mailed by the UC Service Center on January 4, 2011 and January 5, 2011, respectively, to the Claimant's last known Post Office address.
4. There is no competent evidence in the record which indicates that the Notices of Determination were returned to the UC Service Center by the Postal authorities as being undeliverable.
5. The Notices of Determination contained the information that the Claimant had until January 19, 2011 and January 20, 2011, respectively, to file an appeal to them, if he disagreed with them.(Id.)
6. The Claimant filed his appeal to the January 4, 2011 determination on January 20, 2011.
7. There was no competent evidence presented at the hearing which indicates that the Claimant was misled or misinformed by the UC Service Center regarding his appeal rights.
8. There is no competent evidence in the record which indicates that when filing for benefits for the weeks at issue in this appeal the Claimant intentionally misled or misinformed the UC Service Center in an attempt to gain benefits to which he was not entitled.
9. The Claimant filed a timely appeal to the January 5, 2011 overpayment determination.
The Referee reasoned that because Section 501(e) of the Law provides that a Notice of Determination shall become final unless an appeal is filed within fifteen (15) days of its issuance, the Referee has no jurisdiction to consider an appeal filed after the expiration of the statutory appeal period. (Id.) The Referee, however, concluded that Claimant filed a timely appeal to the Notice of Determination regarding the fault overpayment. (Id.) The Referee determined that because no evidence of record existed to conclude that Claimant attempted to defraud the Service Center, the overpayment could only be recouped by the non- fault provisions of Section 804(b) of the Law as opposed to the fault provisions of Section 804(a) of the Law. (Id.)
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 874(b).
The Referee issued a similar decision and order that same date, concerning eligibility for benefits for a different "waiting week ending." (C.R., Item No. 10a.) That decision contains many of the same findings of fact listed above. For purposes of this appeal and to avoid confusion, we will refer to the above findings only.
Claimant appealed to the Board, and the Board affirmed the Referee's decision on both issues. (C.R., Item No. 15a, 15b.) The Board adopted and incorporated the Referee's findings of fact and conclusions of law. (Id.)
On appeal, Claimant argues that the Board erred in concluding that his appeal of the denial of unemployment compensation benefits based on Section 402(b) of the Law was untimely, and he asks this Court to "reexamine the facts surrounding this case." (Claimant's Brief at 11.) Further, Claimant argues that his due process rights were violated when the Referee disallowed him to present evidence during the hearing.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704. Review for capricious disregard of material and competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Leon E. Wintermyer, Inc. v. Workers' Comp. Appeal Bd. (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002).
As noted above, Section 501(e) of the Law provides that unless a claimant files an appeal of a Notice of Determination within fifteen calendar days after it was mailed to his last known post office address, such determination "shall be final and compensation shall be paid or denied in accordance therewith." "This fifteen-day time limit is mandatory and subject to strict application." Renda v. Unemployment Comp. Bd. of Review, 837 A.2d 685, 695 (Pa. Cmwlth. 2003), appeal denied, 581 Pa. 685, 863 A.2d 1151 (2004). Failure to appeal timely an administrative agency's action is a jurisdictional defect, and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Sofronski v. Civil Serv. Comm'n, City of Philadelphia, 695 A.2d 921, 924 (Pa. Cmwlth. 1997). Thus, a petitioner carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). An appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process or non-negligent circumstances related to the petitioner, his counselor, or a third party. Cook v. Unemployment Comp Bd. of Review, 543 Pa. 381, 383-84, 671 A.2d 1130, 1131 (1996).
We first address Claimant's request that this Court reexamine the facts of this case. In an unemployment case, it is well settled that the Board is the ultimate fact finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Comp. Bd. of Review, 509 Pa. 267, 271, 501 A.2d 1383, 1385 (1985). The Board is also empowered to resolve conflicts in evidence. DeRiggi v. Unemployment Comp. Bd. of Review, 856 A.2d 253, 255 (Pa. Cmwlth. 2004). Our review is limited to whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704. While Claimant does not specifically challenge any of the Board's findings, Claimant maintains that he timely filed his appeal by faxing it to the Service Center on January 11, 2011, which is contrary to the Board's finding of fact number 6. We will, therefore, interpret this argument as challenging whether substantial evidence of record exists to support finding of fact number 6.
Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record taken as a whole contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
Upon reviewing the evidence in the record, we conclude that substantial evidence exists to support a finding that "Claimant filed his appeal to the January 4, 2011 determination on January 20, 2011," which was one (1) day past the expiration of the appeal period. (C.R., Item No. 10b.) First, we note that the Service Center had no record of receiving Claimant's appeal prior to January 20, 2011. Second, although Claimant testified that he originally sent his appeal on January 11, 2011 and subsequently refaxed the document on January 20, 2011, the Board did not credit that testimony. Moreover, we note that Claimant could not provide any evidence to support that testimony. Also, Claimant essentially admitted at the hearing that he did not file his appeal until January 20, 2011. Therefore, we must conclude that substantial evidence exists to support the Board's finding that Claimant submitted his appeal on January 20, 2011, rather than January 11, 2011.
This Court recently noted in Wright v. Unemployment Compensation Board of Review, ___ A.3d ___ (Pa. Cmwlth., No. 2739 C.D. 2010, filed December 16, 2011) (en banc), that the absence of an appeal document in the Board's record creates, at best, an inference that the Board did not receive the document and, therefore, that it was not filed. Wright, slip. op. at 11; see 34 Pa. Code § 101.82(b)(3)(iii) (proving that faxed appeal is filed upon receipt, not transmission). However, the claimant in Wright presented evidence of a timely filing of an appeal (i.e., transmission and receipt) to rebut the inference that the Board did not receive the appeal document. Id. at 3. We held that the Board capriciously disregarded the evidence Claimant presented. Id. at 15. Unlike Wright, Claimant in this case did not present any evidence at the hearing that his appeal was timely filed. Wright is, therefore, distinguishable from the case at bar.
Claimant's testimony regarding his filing of the appeal is as follows:
Q: Well, what about-do you have anything to show that you sent it on January the 11th?(C.R., Item No. 9 at p. 5.)
A: No, I don't. This is something else that I had sent. This is back in November when I initially appealed it, but no, I don't have anything with the date of the 19th on it.
Q: All right. Is there anything else you want to say on the issue of the timeliness of your appeal?
A: I was out of town for the weekend that I got the information, so that's the only excuse I really have that I didn't get it in on the 19th.
Claimant also insinuates that he is entitled to an appeal nunc pro tunc. (Claimant's Brief at 10.) Specifically, Claimant asserts, in his brief, that the Service Center failed to perform proper administrative procedures and failed to give Claimant adequate information upon his inquiries. (Id.) However, Claimant did not provide any testimony or other evidence of record during the hearing that the Service Center misled or misinformed him, and the Board discredited his testimony (in the absence of any supporting evidence) that he faxed his appeal on January 11, 2011. Under these circumstances, we conclude that an appeal nunc pro tunc is not warranted.
We next address Claimant's argument that his due process rights were violated by the Referee and the Service Center. We initially note that "[t]he essential elements of due process are notice and an opportunity to be heard in a full and fair hearing before an impartial decision maker." Leone v. Unemployment Comp. Bd. of Review, 885 A.2d 76, 80 (Pa. Cmwlth. 2005). Regarding the Referee, an allegation of due process essentially challenges whether the referee conducted the hearing in accordance with Section 101.21 of the Code, 34 Pa. Code § 101.21. Hackler v. Unemployment Comp. Bd. of Review, 24 A.3d 1112, 1115 (Pa. Cmwlth. 2011). Section 101.21 of the Code provides the following:
Where a party is not represented by counsel the tribunal before whom the hearing is being held should advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of its official duties.34 Pa. Code § 101.21. In interpreting this regulation, the courts have held that, in addition to advising pro se parties of their rights and aiding them in questioning witnesses, referees should reasonably assist pro se parties to elicit facts that are probative for their case. Hackler, 24 A.3d at 1115 (citing Bennett v. Unemployment Comp. Bd. of Review, 445 A.2d 258, 259-60 (Pa. Cmwlth. 1982)). The referee must act reasonably in eliciting necessary facts. Hackler, 24 A.3d at 1115.
Here, Claimant was the only party present at the hearing in front of the Referee. During the hearing, the Referee stated the following:
Okay. I want to remind you that you had the right to come to this hearing to testify and offer any evidence you may have regarding this matter. You have the right to have witnesses testify on your behalf. You have the right to ask any questions you may have about this hearing. And you have the right to have legal or non-legal representation. Now any testimony given by yourself at this hearing must be done under oath.(C.R., Item No. 9 at p. 1.) Not only did the Referee inform Claimant of his rights at the beginning of the hearing, which is required, the Referee allowed Claimant to present testimony regarding the timeliness of his appeal to the Service Center. Furthermore, the Referee assisted Claimant by answering questions throughout the hearing. Once the Referee determined that all evidence regarding the timeliness of the appeal had been heard, the Referee adjourned the hearing. We find no due process violation by the Referee. First, the Referee afforded Claimant the right to be heard and assisted him when necessary regarding the facts of his appeal. Second, when considering Section 501(e) of the Law, the Referee has no jurisdiction to consider an appeal that was filed after the expiration of the statutory appeal period. Therefore, beyond considering the timeliness of Claimant's appeal, the Referee, at that point, could not hear the merits of Claimant's case. Accordingly, nothing in the record validates a due process claim.
Similarly, Claimant's due process claim against the Service Center is without merit. Claimant asserts that his due process rights were violated by the Service Center because it failed to "retain his original fax transmission," and because the Service Center provided him with inadequate or misleading information. (Claimant's Brief at 6.) First, we determined above that substantial evidence of record exists to support the Board's finding that Claimant did not file an appeal until January 20, 2011, and we are bound by that finding. There is simply no credible evidence of record that the Service Center received, let alone failed to "retain his original fax transmission," and, therefore, such an unsupported contention cannot form the basis of a due process violation. Second, as previously addressed, Claimant did not offer any testimony or other evidence of record that the Service Center misled or misinformed him. This unsupported contention also cannot form the basis for a due process violation. Accordingly, Claimant's due process claim against the Service Center is meritless.
Claimant attempts to introduce facts that are not in the record. Claimant asserts that he sent his appeal "vial [sic] the US [sic] Postal Service." (Claimant's Brief at 6.) Claimant argues that his due process rights were violated because the Service Center could not answer whether or not it received his appeal. However, at the hearing, Claimant testified that he faxed his appeal. Claimant cannot now introduce additional or contrary evidence on appeal, as this Court is bound by the facts in the record. Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010). Any due process claim based on evidence that is not in the record is, therefore, without merit. --------
For the foregoing reasons, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 30th day of January, 2012, the Order of the Unemployment Compensation Board of Review is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge