Opinion
No. 1062 C.D. 2012
11-28-2012
Michelle M. Chesla, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Michelle M. Chesla (Claimant), pro se, petitions this Court for review of the Unemployment Compensation Board of Review's (UCBR) April 9, 2012 Order affirming the Referee's decision dismissing Claimant's appeal as untimely. We affirm.
Claimant was employed as a Licensed Physical Therapist Assistant working for Enduracare Therapy Management, Inc. (Employer). On or about June 1, 2011, Claimant took a leave of absence because her professional license was rescinded. On June 19, 2011, Claimant filed an application for benefits under the Unemployment Compensation Law (Law). On July 15, 2011, a Notice of Determination (Notice) was mailed to Claimant disqualifying her from receiving unemployment compensation (UC) benefits. The Notice contained a statement informing Claimant that she had 15 days from the date of the determination to file an appeal. Accordingly, Claimant's last day to file an appeal from the determination was August 1, 2011. The Notice was not returned by postal authorities as undeliverable. Claimant did not file an appeal until January 25, 2012, approximately six months after the filing deadline. At a hearing before a Referee on February 24, 2012, Claimant admitted receiving the Notice, and noting the appeal deadline. Employer did not appear at the hearing.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-914.
On February 27, 2012, the Referee dismissed Claimant's appeal as untimely. Claimant appealed to the UCBR. On April 9, 2012, the UCBR affirmed the Referee's decision and order. Claimant appealed to this Court.
"Claimant, as the burdened party, was the only party to testify and yet did not prevail before the factfinder; thus, our review is limited to determining whether the factfinder capriciously disregarded competent evidence, whether there was a constitutional violation or an error of law." Stana v. Unemployment Comp. Bd. of Review, 791 A.2d 1269, 1271 n.5 (Pa. Cmwlth. 2002). --------
Claimant asserts that the Referee and the UCBR should have permitted her late-filed appeal. We disagree.
Section 501(e) of the Law, 43 P.S. § 821(e), provides that an appeal from the UC Service Center's notice of eligibility determination must be filed 'within fifteen calendar days after such notice was delivered to him [or her] personally, or was mailed to his [or her] last known post office address.' . . . Failure to timely appeal an administrative agency's decision constitutes a jurisdictional defect.Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1002 (Pa. Cmwlth. 2010). The untimely filing of an appeal may not be disregarded. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). It is well established that "[t]he courts have no power to extend the period for taking appeals, absent fraud or a breakdown in the court's operation through a default of its officers." In re Order of Nether Providence Zoning Hearing Board Dated April 29, 1975, 358 A.2d 874, 876 (Pa. Cmwlth. 1976). As stated by this Court:
the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). The appellant must justify the delay in filing the appeal. DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213 (Pa. Cmwlth. 1997).Sofronski v. Civil Serv. Comm'n, 695 A.2d 921, 924 (Pa. Cmwlth. 1997) (italics added). See also, Russo.
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 the appellant or his counsel or a third party. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996). The appellant must also establish that (1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) the appellee is not prejudiced by the delay. Id.
The UCBR, as the ultimate finder of fact in unemployment compensation cases, is authorized to make credibility determinations and may reject even uncontradicted testimony. Russo. "We cannot substitute our judgment for that of the [UCBR]; matters of credibility of witnesses and testimony are for its determination." Levitan v. Unemployment Comp. Bd. of Review, 400 A.2d 915, 916 (Pa. Cmwlth. 1979). In the instant matter, Claimant offered no evidence of any fraud or breakdown in the administrative process. Nor did Claimant demonstrate any non-negligent circumstances to which she attributed the delay. Instead, Claimant admitted that due to "human error," she simply failed to timely appeal. Claimant's Br. at 9. Claimant testified:
I did [receive the Notice and noted that the last day to appeal was August 1, 2011]. In my own error, when I found out - when I got more - additional information, I went - I actually went on the Internet and I guess I
reapplied, rather than doing an appeal. So I was - it was an error on my part. I didn't follow the correct process.Notes of Testimony, February 24, 2012 at 3-4.
The UCBR determined, and the record demonstrates, that Claimant received the Notice, and that she did not file her appeal until six months after the required filing deadline. The UCBR also found that Claimant was not misinformed or misled as to her right to appeal. Accordingly, Claimant's appeal was untimely, and Claimant did not meet the standard for an appeal nunc pro tunc. Because the UCBR's findings are based upon substantial evidence, and we have no authority to act where no jurisdiction exists, we are constrained to conclude that the UCBR properly dismissed Claimant's appeal.
For the above-stated reasons, the order of the UCBR is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 28th day of November, 2012, the Unemployment Compensation Board of Review's April 9, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge