Opinion
No. 1636 C.D. 2012
02-13-2013
Eric Schwegel, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Eric Schwegel (Claimant), representing himself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that dismissed his appeal as untimely under Section 502 of the Unemployment Compensation Law (Law). Claimant appeals the Board's decision on the underlying merits determinations: ineligible under Section 402(e) of the Law, 43 P.S. §802(e) (willful misconduct), and fraud overpayment and assessed penalties pursuant to Section 4005(a) of the EUC Act of 2008 (EUC Act). However, only the issue of timeliness is before us. On this record, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, 26 U.S.C. §3304 note.
Following the termination of his employment with Cable Links (Employer) in September 2010, Claimant filed for unemployment compensation (UC) benefits. Claimant received UC benefits starting in October 2010. For reasons that are unclear on this record, the Department of Labor and Industry (Department) sought further information from Claimant on May 23, 2011.
Relevant to this appeal, the Department then issued two notices of determination regarding Claimant's benefits. The Department found Claimant ineligible for UC benefits previously received, and established a fault overpayment. The Department also found Claimant ineligible for emergency unemployment compensation (EUC) benefits pursuant to Section 4001(b) of the EUC Act, assessed a fraud overpayment in the amount of $2,160.00, and imposed 14 penalty weeks. Claimant timely appealed these determinations.
Under Section 4001(b) of the EUC Act, EUC benefits are only available to a claimant who has exhausted his entitlement to regular compensation. Under Section 4005(c) of the EUC Act, the state agency may recover the amount to be repaid of a non fraud overpayment, unless a waiver is requested and granted. A waiver may be granted where the overpayment is without fault. Id. A fraud overpayment cannot be waived. Rouse v. Unemployment Comp. Bd. of Review, 41 A.3d 211 (Pa. Cmwlth. 2012) (discussing waiver of non-fraud overpayment).
The referee mailed notices scheduling a hearing to Claimant's last known address in September and October 2011; she did not hold a hearing. Based on the documentary evidence, the referee affirmed the Department.
Specifically, the referee found that Claimant was discharged because he lost his driver's license as a result of a conviction for driving under the influence, a fact he did not disclose in his application. She concluded "[Claimant's] overpayment was the result of his misrepresentation of the reason for his unemployment." Ref. Decision, 10/19/11, at 2. The referee established a fault overpayment and imposed 14 penalty weeks on Claimant for making a false statement to obtain benefits pursuant to Section 801(b) of the Law, 43 P.S. §871(b). The referee issued her decision on October 19, 2011, making an appeal due by November 3, 2011.
Claimant was incarcerated from September 8, 2011, through February 29, 2012. As a consequence, he did not receive the hearing notices, and he was not able to attend a hearing before the referee. Because Claimant did not make any arrangements to receive his mail while incarcerated, he also did not receive the referee's decisions until after the due date for a timely appeal lapsed. Despite his release from incarceration in February, Claimant did not file an appeal of the referee's decision until May 2012.
In his untimely appeal to the Board, Claimant challenged the basis for his discharge and alleged false statements. He argued his termination could not relate to losing his license because Employer terminated his employment in September 2010, and he did not lose his license until December 2010. Claimant requested another hearing regarding these matters, explaining he could not attend the hearing on the merits scheduled to be held while he was incarcerated.
Once it received the untimely appeal, the Department advised Claimant he would need to request a hearing on the timeliness issue. Claimant did so, reemphasizing that he would have prevailed at the hearing on the merits had he been able to attend, which he could not do because he was incarcerated.
After a remand hearing to address timeliness, the Board dismissed the appeal as untimely under Section 502 of the Law, 43 P.S. §822. The Board determined that Claimant did not provide reasons for his delayed appeal. Specifically, the Board made the following pertinent findings:
5. Copies of Referee's decisions were mailed to [Claimant] at his last known post office address on [October 19, 2011].Bd. Op., 7/11/12, Findings of Fact (F.F.) Nos. 5, 7-8, 10-13.
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7. The decisions mailed ... were delivered to [Claimant's] address.
8. [Claimant's] appeal from the Referee's decisions in order to be timely, had to have been filed on or before November 3, 2011.
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10. [Claimant] did not make arrangements to get his mail while incarcerated and did not open his mail until after his release from incarceration.
11. [Claimant's] appeal was filed on May 1, 2012 by fax.
12. [Claimant] was not misinformed or misled by the unemployment compensation authorities concerning his right or the necessity to appeal.
13. [Claimant's] 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.
Ultimately, the Board dismissed Claimant's appeal as untimely. Claimant then requested reconsideration of that order, which the Board also denied as untimely. Claimant now petitions for review.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Spence v. Unemployment Comp. Bd. of Review, 29 A.3d 117 (Pa. Cmwlth. 2011).
Pursuant to Section 502 of the Law, a party has 15 days to appeal a decision furnished by the referee. 43 P.S. §822; see also Polakovic v. Unemployment Comp. Bd. of Review, 531 A.2d 852 (Pa. Cmwlth. 1987) (holding the 15-day statutory time limit for appeals from a referee's decision is mandatory). The timeliness of an appeal is not a mere technicality. Polakovic. As untimeliness is a jurisdictional defect, courts cannot extend the time for taking an appeal as a matter of grace or mere indulgence. Sofronski v. Civil Serv. Comm'n, City of Phila., 695 A.2d 921 (Pa. Cmwlth. 1997). The party seeking a late appeal, therefore, must justify the delay in filing the appeal. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). The burden to do so "is a heavy one because the statutory time limit established for [unemployment compensation] appeals is mandatory." Id. at 198.
Claimant asserts he should be permitted to file an appeal nunc pro tunc, or "now for then," because he was incarcerated at the time the appeal was due, and he could not participate in the initial hearing on the merits.
Claimant focuses on the merits of his appeal. However, if an appeal is not timely filed, the determination becomes final and the Board loses jurisdiction to consider the matter on the merits. Pa. Tpk. Comm'n v. Unemployment Comp. Bd. of Review, 991 A.2d 971 (Pa. Cmwlth. 2009). The merits are not presently before this Court. --------
A party may proceed nunc pro tunc only where he establishes that extraordinary circumstances, such as an administrative breakdown, fraud, or some other conduct beyond his control and not attributable to his own negligence, caused the delay. Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, 671 A.2d 1130 (1996) (holding claimant may justify late filing due to incapacitation when he undertakes immediate efforts to file once he is able); Hessou. With regard to non-negligent circumstances beyond a claimant's control, our Supreme Court held that a claimant must show: (1) the appeal was filed within a short time after learning of the untimeliness; (2) the period that elapsed was of a very short duration; and, (3) the agency was not prejudiced by the delay. Cook.
Claimant does not assert administrative breakdown or fraud. Claimant does not offer any reason for his delay in filing the appeal other than his incarceration, which he characterizes as a ground beyond his control.
Incarceration does not constitute non-negligent grounds to permit an untimely appeal. See Puckett v. Dep't of Transp., Bureau of Driver Licensing, 804 A.2d 140 (Pa. Cmwlth. 2002) (holding incarceration did not justify untimely appeal because licensee had responsibility to receive mail). That is particularly the case when there is inexcusable delay between the time of release and filing of the appeal. See, e.g., Pritchett v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 1295 C.D. 2011, filed May 31, 2012) (unreported) (holding appeal filed three weeks after release untimely); Pemrich v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 1428 C.D. 2011, filed May 23, 2012) (unreported) (holding appeal filed 10 days after deadline, not excusable delay); Armstrong v. Unemployment Comp. Bd. of Review, (Pa. Cmwlth., No. 648 C.D. 2011, filed Feb. 7, 2012) (unreported) (dismissing appeal filed within week of release).
In three recent decisions involving similar circumstances, we held that a claimant could not excuse his delay in filing an appeal based on his incarceration. See Pritchett; Pemrich; Armstrong. We reached this conclusion even when the claimant filed an appeal within 10 days of his release. Pritchett; Pemrich. We reasoned the claimants should have made arrangements for receiving mail while incarcerated to address any time-sensitive materials such as bills and the appealable orders at issue. Id.; Armstrong. A claimant's failure to make such arrangements precluded a finding of proper cause for his untimely appeal, even with a minimal delay. Id.
Here, Claimant's only excuse for untimeliness is his incarceration. Despite his release in February 2012, Claimant did not file an appeal until May. Upon release, Claimant had an obligation to retrieve his mail and file an appeal as soon as he was able. Cook. Inexplicably, he failed to do so for an additional two months after his release. Two months does not constitute the short duration or delay contemplated in Cook. Further, Claimant fails to explain this delay. Thus, Claimant fails to establish the requisite cause to proceed nunc pro tunc. Id. Accordingly, the Board committed no error in concluding Claimant's delay of almost six months beyond the appeal deadline, and two months after his release from incarceration, was excessive and inexcusable here.
Moreover, because a claimant bears responsibility to ensure he receives his mail, an agency need only mail the notice to the last known address. Cook; Armstrong. Here, substantial evidence supports the findings that Claimant received the notices at the correct address. Notes of Testimony, 6/18/12, at 3-4.
As Claimant did not carry his heavy burden to establish extraordinary circumstances to allow an untimely appeal, we affirm the Board.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 13th day of February, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge