Opinion
No. 948 C.D. 2020
08-31-2021
Jeffrey T. BARSKY, Petitioner v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent
Alexander J. Ginsburg, Philadelphia, for Petitioner. Shawn Westhafer, Assistant Counsel, Harrisburg, for Respondent.
Alexander J. Ginsburg, Philadelphia, for Petitioner.
Shawn Westhafer, Assistant Counsel, Harrisburg, for Respondent.
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE J. ANDREW CROMPTON, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY PRESIDENT JUDGE BROBSON
Jeffrey T. Barsky (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), dated September 2, 2020, which affirmed a decision by a Referee, dismissing Claimant's appeal as untimely under Section 501(e) of the Unemployment Compensation Law (Law). For the reasons set forth below, we vacate the Board's decision and remand for reconsideration in accordance with this Opinion.
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 provides:
(e) Unless the claimant ... files an appeal with the board, from the determination contained in any notice required to be furnished by the [Department of Labor and Industry (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.
I. BACKGROUND
Claimant was employed by Barsky Diamonds (Employer) until March 2020, when Governor Wolf mandated the closure of non-essential businesses because of the COVID-19 pandemic, which temporarily shuttered Employer. (See Claimant's Brief at 5; Certified Record (C.R.) at 3.) Claimant applied for unemployment compensation benefits on March 15, 2020, and the Service Center granted benefits. (C.R. at 3-4; see Reproduced Record (R.R.) at 38.) On May 1, 2020, the Service Center mailed to Claimant an Advanced Notice letter, indicating that Claimant's benefits may temporarily or permanently be suspended because the Service Center learned that Claimant was self-employed. (R.R. at 35.) Thereafter, on May 18, 2020, the Service Center mailed to Claimant a Notice of Determination, concluding that Claimant was self-employed and, therefore, was ineligible for benefits pursuant to Section 402(h) of the Law, 43 P.S. § 802(h). (Id . at 38.) The notice provided that June 2, 2020, was the final day to file a timely appeal. (Id .) The Service Center subsequently mailed to Claimant a Notice of Determination Overpayment of Benefits (Notice of Determination of Overpayment), indicating that Claimant received a total of $4,464 in unemployment compensation benefits to which he was not entitled, which resulted in a non-fault overpayment under Section 804(b) of the Law, 43 P.S. § 874(b). (Id . at 41.) The Notice of Determination of Overpayment provided that June 3, 2020, was the final day to file a timely appeal. (Id .) Claimant appealed both determinations, but the Service Center did not receive the letter containing the appeal until June 4, 2020. (C.R. at 37, 39.) The Referee then conducted a telephonic hearing, at which the Referee received testimony from Claimant and Elaine Freemer (Freemer), a Certified Public Accountant who is a representative of Claimant and who mailed Claimant's appeal to the Service Center. (R.R. at 5, 7, 49-51, 53.)
Section 402(h) of the Law provides: "An employe[e] shall be ineligible for compensation for any week ... [i]n which he is engaged in self-employment ...."
Section 804(b) of the Law provides: "Any person who other than by reason of his fault has received with respect to a benefit year any sum as compensation under this act to which he was not entitled shall not be liable to repay such sum but shall be liable to have such sum deducted from any future compensation payable to him with respect to such benefit year ...."
At the hearing, the Referee questioned Claimant and Freemer regarding the timeliness of the appeal, noting that the envelope did not have a United States Postal Service (USPS) postmark on it, but rather it had only a stamp date of June 4, 2020, applied by the Service Center upon receipt. (R.R. at 11.) Freemer explained that she mailed the letter on June 1, 2020, but the postal authorities must not have postmarked the envelope, and she does not otherwise use a private meter mark. (See id .) Because she was homebound due to the COVID-19 pandemic, Freemer instead offered to provide the Referee a printout of a USPS price calculator dated June 1, 2020, which she testified would establish that the appeal was mailed on that date. (Id .) The Referee responded that she would accept and consider the document's bearing on the timeliness of the appeal if Claimant faxed it to her by the close of business that day. (Id . at 11-12.)
Thereafter, the Referee issued a decision, concluding that Claimant's appeal was untimely pursuant to Section 501(e) of the Law and dismissing the appeal. In so doing, the Referee issued the following findings of fact:
1. On May 18, 2020, the UC Service Center mailed a Notice of Determination to the Claimant's last known mailing address, finding the Claimant ineligible for benefits under Section 402(h) of the [Law].
2. On May 19, 2020, the UC Service Center mailed a Notice of Determination of Overpayment to the Claimant's last known mailing address, finding that the Claimant had received benefits in the aggregate amount of $4,464 to which he was not entitled and ruling the overpayment
a non-fault overpayment under Section 804(b) of the Law.
3. Neither [n]otice of [d]etermination was returned by the postal authorities as being undeliverable.
4. The [n]otices of [d]etermination indicated that the last date on which to file an appeal was June 2, 2020[,] or June 3, 2020.
5. Claimant filed an appeal to the [n]otice[s] of [d]etermination via regular mail; there is no [USPS] postmark or other meter mark visible on the envelope used to submit ... Claimant's petition for appeal; a date stamp on the envelope indicates that it was received by the ... Service Center [on] June 4, 2020.
6. Claimant was not misinformed or misled with respect to his appeal rights.
(R.R. at 64-65.)
In the absence of a postmark or meter mark, the Referee reasoned that the appeal did not otherwise satisfy the requirements of Section 101.82 of the Board's regulations, 34 Pa. Code § 101.82, for establishing the filing date of an appeal sent by United States mail. (R.R. at 65-66.) As a result, the Referee concluded the date the appeal was received by the Service Center controls—i.e. , June 4, 2020. (Id .) As it concerns the USPS price calculator printout provided by Freemer, the Referee explained that it only indicated the printout was downloaded and printed on June 1, 2020, not that the appeal was actually mailed on that date. (Id . at 65.) Consequently, the appeal was filed on June 4, 2020, and it was untimely pursuant to Section 501(e) of the Law.
Claimant appealed the Referee's decision to the Board, contending that, "[d]ue to the [COVID-19] pandemic and [Freemer's] compromised health condition, th[e appeal] was sent by ... Freemer without physically going to the post office, [but the appeal] was sent out timely. It is unclear why there was no postmark on [the envelope] from the ... [p]ost [o]ffice ...." (R.R. at 69-75.) Nevertheless, the Board adopted and incorporated the Referee's findings and conclusions and affirmed. (Id . at 2-3.) The Board first explained that Freemer's testimony regarding the June 1, 2020 mailing date could not overcome the plain language of Section 101.82 of the Board's regulations, which accepts the date the Service Center receives the appeal in the mail as the filing date in the absence of the other enumerated methods. (Id . at 2.) The Board further noted that this Court's unreported panel decision in Quinn v. Unemployment Compensation Board of Review , 2015 WL 5123418 (Pa. Cmwlth., No. 1238 C.D. 2014, filed January 23, 2015) forecloses the possibility of a nunc pro tunc appeal based on the postal authorities’ failure to postmark the envelope. (Id . at 3.) Lastly, the Board held that Freemer's inability to satisfy Section 101.82 because she was homebound due to the COVID-19 pandemic was likewise insufficient for an appeal nunc pro tunc , where email and fax options of appeal were available to Freemer and there was no testimony indicating that she routinely took business mailings to the post office before the pandemic occurred. (Id .) Hence, the Board affirmed the decision of the Referee. Claimant now petitions this Court for review.
Pursuant to Section 414(a) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited for its persuasive value but not as binding precedent.
II. ISSUES On appeal, Claimant essentially argues: (1) the Board capriciously disregarded competent, relevant evidence demonstrating that (i) the appeal complied with Section 101.82 of the Board's regulations, and (ii) Claimant was entitled to nunc pro tunc relief, and (2) if the appeal was untimely, it should nonetheless be permitted nunc pro tunc because non-negligent circumstances led to the appeal being mailed without a postmark. In sum, the issues presented by Claimant require us to consider whether the evidence of record is sufficient either: (1) to satisfy Section 101.82 of the Board's regulations for establishing the timeliness of Claimant's appeal, or (2) to warrant nunc pro tunc relief. We conclude that, while the evidence presented is insufficient to establish that Claimant's appeal was timely filed pursuant to Section 101.82 of the Board's regulations, the Board capriciously disregarded the tracking number evidence as it relates to nunc pro tunc relief.
Generally, 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. We may also, however, "[d]isturb[ ] an agency's adjudication for a capricious disregard of evidence ... where the factfinder has refused to resolve conflicts in the evidence, has not made essential credibility determinations or has completely ignored overwhelming evidence without comment." Wise v. Unemployment Comp. Bd. of Rev. , 111 A.3d 1256, 1263 (Pa. Cmwlth. 2015). "When determining whether the Board capriciously disregarded the evidence, the Court must decide if the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, if the Board willfully or deliberately ignored evidence that any reasonable person would have considered to be important." Bennett v. Unemployment Comp. Bd. of Rev. , 33 A.3d 133, 136 n.3 (Pa. Cmwlth. 2011), appeal denied , 67 A.3d 798 (Pa. 2013) (quoting Jackson v. Unemployment Comp. Bd. of Rev. , 933 A.2d 155, 156 n.4 (Pa. Cmwlth. 2007) ).
In the statement of questions involved section of his brief, Claimant frames the issue as: "Whether there was substantial evidence provided at the appeal hearing to prove that [Claimant]’s appeal was timely filed[?]" (Claimant's Brief at 4.) We note that it is somewhat unclear from this language whether Claimant is attempting to raise an error of law or substantial evidence issue, which, in the latter case, would directly challenge the Board's factual findings. Nonetheless, Claimant contends in the argument section of his brief that the Board ignored competent and relevant evidence in rendering its decision (capricious disregard), and that a nunc pro tunc appeal should have been granted by the Board. Claimant does not otherwise develop a substantial evidence or error of law argument in his brief. Accordingly, because Claimant does not challenge the Board's factual findings, those findings are binding on appeal, and we proceed to analyze the capricious disregard and nunc pro tunc questions properly raised. See Munski v. Unemployment Comp. Bd. of Rev. , 29 A.3d 133, 137 (Pa. Cmwlth. 2011).
For purposes of this opinion, we will consider all issues relative to nunc pro tunc relief in one comprehensive section in III.B.
III. DISCUSSION
A. Timeliness of Appeal - Section 101.82 of the Board's Regulations
Under Section 501(e) of the Law, an appeal must be filed within fifteen days from the date a determination is mailed to a claimant's last known address. At the conclusion of the fifteen-day period, the determination becomes final, and the Board no longer has jurisdiction to consider the matter. Hessou v. Unemployment Comp. Bd. of Rev. , 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). "Appeal periods, even at the administrative level, are jurisdictional and may not be extended as a matter of grace or indulgence; otherwise, there would be no finality to judicial action." McKnight v. Unemployment Comp. Bd. of Rev. , 99 A.3d 946, 949-50 (Pa. Cmwlth. 2014). Section 101.82(a) of the Board's regulations provides that an appeal sent on or before the fifteenth day of the appeal period is timely if it is received after the fifteen days have passed. The permissible filing methods and rules for establishing whether the appeal was sent on or before the fifteenth day of the appeal period are set forth in Section 101.82(b), which provides, in pertinent part:
(b) A party may file a written appeal by any of the following methods:
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official [USPS] postmark on the envelope containing the appeal, a [USPS] Form 3817 (Certificate of Mailing) or a [USPS] certified mail receipt.
(ii) If there is no official [USPS] postmark, [USPS] Form 3817 or [USPS] certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the [d]epartment, the workforce investment office or the Board when it receives the appeal.
Significantly, Section 101.82 of the Board's regulations "does not recognize placing an appeal in the mail as the initiation of the appeal"; rather, Section 101.82 places significance on the date of the postmark, meter mark, USPS Form 3817, or certified mail receipt, and, in their absence, the date the appeal is received by the Board. See Edwards v. Unemployment Comp. Bd. of Rev. , 162 Pa.Cmwlth. 698, 639 A.2d 1279, 1281 (1994). Indeed, as the Board notes in its brief, this Court has held that the filing date of an appeal "must be discernible from either the face of [the] document or from the internal records of the court." McKnight , 99 A.3d at 949 (citing Miller v. Unemployment Comp. Bd. of Rev. , 505 Pa. 8, 476 A.2d 364, 366 (1984) ). It is also accurate that testimony is generally insufficient to evidence a timely appeal under Section 101.82, but we have recognized that it may be considered in circumstances where an administrative breakdown of the unemployment compensation system prevents a claimant from demonstrating that he complied with the regulation. See Cumberland Valley Animal Shelter v. Unemployment Comp. Bd. of Rev. , 881 A.2d 10, 13 (Pa. Cmwlth. 2005) ; Miller , 476 A.2d at 366. On review, "we must defer to the Board's interpretation of its own regulation unless it is clearly erroneous." McKnight , 99 A.3d at 949.
Claimant contends the Board capriciously disregarded the following three pieces of evidence when considering whether his appeal was timely filed:
1. The [USPS price calculator] printout provided by ... Freemer confirming the mailing was paid for on June 1, 2020;
2. The Certified Mail Tracking Number affixed to the envelope[, which] would have confirmed when the envelope was tendered to the postal service ...; and
3. The logical conclusion that the envelope must have been mailed prior to the appeal deadline for it to have arrived at the ... Service Center on June 4, 2020.
(Claimant's Brief at 12.) Essentially, Claimant argues that this evidence, ignored by the Board, clearly establishes that the appeal was timely filed on June 1, 2020, and that no reasonable person would have failed to consider the evidence.
The Board counters that, as it concerns compliance with Section 101.82 of the Board's regulations, it could not consider the evidence at issue. Rather, the Board contends that it must strictly comply with "its own regulations in determining the perfection date of an appeal." (Board's Brief at 6 (quoting Edwards , 639 A.2d at 1281 ).) The Board notes that, under the precedent of this Court, merely paying for postage or placing an appeal in the mail is insufficient to establish its filing date, and a tracking number is likewise insufficient because the "filing date must be discernable from either the face of [the] document or from the internal records of the court." (Board's Brief at 7 (quoting McKnight , 99 A.3d at 949 ).) Furthermore, the Board asserts that Freemer's and Claimant's testimony cannot support and/or corroborate the evidence at issue to establish timeliness under Section 101.82. According to the Board, there was, therefore, no capricious disregard of the USPS price calculator, the tracking number, and the logical mailing date of the appeal because this evidence cannot establish the filing date of an appeal pursuant to Section 101.82 of the Board's regulations. We agree with the Board.
First, the USPS printout does not fit into any of the categories enumerated in Section 101.82(b)(1) of the Board's regulations, and it does not establish the appeal was actually mailed to the Service Center on June 1, 2020. Rather, the printout seems only to document the price calculation of some letter that was to be mailed on June 1, 2020. It does not indicate that the letter was indeed the appeal filed at present, nor does it show that Freemer physically placed the letter in the mailbox or handed it to a postal delivery person at her home on June 1, 2020. Similarly, a tracking number is not enumerated in Section 101.82 as a method for establishing the filing date of an appeal. We further disagree with Claimant that the Board erred by ignoring "[t]he logical conclusion that the envelope must have been mailed prior to the appeal deadline for it to have arrived" on June 4, 2020. As noted above, Section 101.82 does not recognize the placement of an appeal in the mail as its initiation. Instead, Section 101.82 recognizes the date of the postmark, meter mark, USPS Form 3817, or certified mail receipt, and, in their absence, the date the appeal is received by the Board as dispositive of timeliness. See Edwards , 639 A.2d at 1281. Thus, what Claimant characterizes as the "logical mailing date" also cannot be relied upon to establish timeliness under Section 101.82. See also Vereb v. Unemployment Comp. Bd. of Rev. , 676 A.2d 1290, 1292-95 (Pa. Cmwlth. 1996) (holding that logical mailing date of appeal was insufficient under Section 101.82 of Board's regulations to establish timeliness of claimant's appeal). Accordingly, the USPS price calculator, the tracking number, and the logical mailing date of Claimant's appeal are insufficient to establish timeliness pursuant to Section 101.82 of the Board's regulations, and the Board did not err in disregarding the evidence for that purpose. Bennett , 33 A.3d at 136 n.3.
More specifically, the printout states: "First-Class Mail ..., Large Envelope, weight 0 lb 3.9 oz (0.111 kg), mailed on June 1 from DRESHER PA 19025 to ERIE PA 16501 ... Expected Delivery Day from DRESHER PA 19025 to ERIE PA 16501 (Zone 3) is Fri[day], Jun[e] 5." (R.R. at 45.)
In other words, without confirmation that the USPS took the appeal into its possession on June 1, 2020, we cannot know for certain whether Freemer mailed the appeal that day or the next.
B. Nunc Pro Tunc
An appeal nunc pro tunc is only warranted in extraordinary circumstances "involving fraud or some breakdown in the court's operation," or where the delay is caused by non-negligent circumstances either by the claimant or a third party. Cook v. Unemployment Comp. Bd. of Rev. , 543 Pa. 381, 671 A.2d 1130, 1131 (1996) (internal quotations omitted) (quoting Bass v. Cmwlth. , 485 Pa. 256, 401 A.2d 1133, 1135 (1979) ).
[W]here an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and [the] appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc .
Id. In reviewing a request for nunc pro tunc relief on non-negligent grounds, "[t]he question of whether there are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal conclusion to be drawn from the evidence and is reviewable on appeal." Harris v. Unemployment Comp. Bd. of Rev. , 247 A.3d 1223, 1231 (Pa. Cmwlth. 2021) (quoting V.S. v. Dep't of Pub. Welfare , 131 A.3d 523, 527 (Pa. Cmwlth. 2015) ). It is well settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. Unemployment Comp. Bd. of Rev. , 165 Pa.Cmwlth. 513, 645 A.2d 447, 449 (1994).
As it concerns nunc pro tunc relief, Claimant essentially argues that the COVID-19 pandemic was a non-negligent circumstance that caused Freemer to mail the appeal from home, thereby resulting in the envelope not being authenticated by one of the methods in Section 101.82 of the Board's regulations. Given these circumstances and the evidence regarding mailing—i.e. , the price calculator printout, tracking number, and logical mailing date—Claimant contends that his appeal should have been accepted nunc pro tunc . The Board essentially responds that the circumstances surrounding the filing of Claimant's appeal were wholly within the control of Claimant and Freemer and that their decision to file the appeal by mail instead of fax or email, which presumably would not have faced the same authentication issues as an appeal filed by mail, does not rise to the level of non-negligent circumstances necessary to accord nunc pro tunc relief.
After careful review, we disagree with the Board's position, and we conclude that the Board capriciously disregarded the tracking number evidence as it relates to nunc pro tunc relief. The exceptional circumstances of the present case include: (1) an appeal filed by mail during the COVID-19 pandemic, during which significant backlogs and errors in USPS's mailing operations occurred; (2) Freemer mailing the appeal from home due to an at-risk health condition; and (3) Claimant seeking unemployment benefits in the first instance as a result of Governor Wolf's mandated closure of non-essential business. Clearly, the factual setting surrounding Claimant's application for unemployment benefits and the filing of Claimant's appeal was anything but ordinary, and it warranted a detailed review of all the evidence of record. Nonetheless, it appears that the Board failed to consider the significance of the tracking number evidence in light of these circumstances. Unlike the USPS price calculator printout, a tracking number is a federally established and reliable means of demonstrating exactly when a piece of mail is sent and received through USPS. Although Claimant did not submit the USPS tracking number information from the USPS website at the Referee hearing (instead providing the USPS price calculator printout), such omission does not render the tracking number irrelevant. Rather, the tracking number is clearly a part of the record, with the number being printed under the barcode on the certified mail sticker on the front of the envelope containing Claimant's appeal. (R.R. at 49.) Indeed, in entering the tracking number into the USPS website, this Court was able to discern quickly and easily that the appeal was mailed on June 1, 2020, or earlier. This information, coupled with Freemer's testimony, may be sufficient to permit Claimant's appeal nunc pro tunc , but the Board did not engage in such an analysis.
Indeed, in Pennsylvania Democratic Party v. Boockvar , ––– Pa. ––––, 238 A.3d 345 (2020), the Pennsylvania Supreme Court concluded that the COVID-19 pandemic constituted a natural disaster that had severely impacted the USPS's operations. Boockvar , 238 A.3d at 370-71.
In his petition for review to this Court, Claimant attached as Exhibit C the USPS tracking page/receipt addressed here. (Claimant's Petition, Exhibit C.) The Board subsequently filed an Application to Strike the exhibit, however, claiming that it was not submitted into the record at the Referee hearing and that this Court, therefore, could not consider it. (Application to Strike, ¶¶ 3-8.) In a Memorandum and Order filed December 4, 2020, in accordance with the precedent and appellate rule noted above, we granted the Board's application and struck Exhibit C from the record. (Memorandum at 1-2.)
The tracking page reveals that the letter "[a]rrived at USPS Regional Facility PHILADELPHIA PA DISTRIBUTION CENTER" on June 2, 2020[,] at 12:00 a.m., meaning the letter must have been mailed by Freemer from Dresher, Pennsylvania prior thereto on June 1, 2020, or earlier. See
https://tools.usps.com/go/TrackConfirmAction?qtc_tLabels1=7015064000080202 3446 (last visited August 30, 2021)
(R.R. at 47-51).
The Board's reliance on Quinn is misguided as foreclosing the possibility of a nunc pro tunc appeal. In Quinn , there was no reference to a tracking number that could provide readily ascertainable information from the USPS to corroborate testimony concerning the timeliness of the mailing, and the Board there found the claimant's uncorroborated testimony lacked credibility. Conversely, there was no finding here that Freemer's testimony was not credible. Quinn is, therefore, both distinguishable and non-binding on this Court, and the Board erred in relying on the opinion to deny Claimant nunc pro tunc relief. Moreover, the fact that Claimant and Freemer had other mechanisms through which they could have transmitted the appeal is irrelevant. Our inquiry is not to review every possible avenue that Claimant could have chosen to file his appeal, but to consider whether, in review of the record and circumstances surrounding the appeal as it was filed , extraordinary events concerning non-negligent conduct warrant nunc pro tunc relief. Cook , 671 A.2d at 1131. In this endeavor, it appears the Board capriciously disregarded the tracking number evidence that, while insufficient to establish the timeliness of the appeal pursuant to Section 101.82 of the Board's regulations, is certainly relevant in relation to nunc pro tunc relief under the extraordinary circumstances of this case. Harris , 247 A.3d at 1231 ; Bennett , 33 A.3d at 136 n.3.
IV. CONCLUSION
Accordingly, we vacate the Board's decision, and we remand the matter to the Board for consideration of the tracking number evidence and its bearing on whether nunc pro tunc relief is warranted under the circumstances of this case.
ORDER
AND NOW, this 31st day of August, 2021, the order of the Unemployment Compensation Board of Review (Board) is VACATED, and the matter is REMANDED to the Board for issuance of a new decision and order in accordance with this Opinion.
Jurisdiction relinquished.