Opinion
No. 1248 C.D. 2012
05-13-2013
Trisha G. Walsh, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Trisha G. Walsh (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board), which dismissed her appeal of a notice of determination issued February 13, 2012, as untimely pursuant to Section 501(e) of the Unemployment Compensation Law (Law). We now reverse the Board's order and remand the matter for further proceedings.
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.
As background, a review of the record reveals that Claimant initially filed for and received unemployment compensation benefits following termination of her employment with First Quality. (Certified Record (C.R.), Item No. 1.) Thereafter, Claimant secured a part-time job with Ross Library (Employer). (C.R., Item No. 3.) The part-time position with Employer was temporary and seasonal in nature, and Claimant reported the earnings from her part-time employment to unemployment compensation authorities. Claimant last worked for Employer on December 19, 2011. (Id.)
Following Claimant's resignation from her employment with Employer, it appears that the Altoona UC Service Center (Service Center) issued a notice of determination, dated January 24, 2012, which determined Claimant to be ineligible for benefits. Claimant appealed that initial notice of determination. Thereafter, the Service Center issued a second notice of determination, dated February 13, 2012, which is the focus of this appeal, also determining Claimant to be ineligible for benefits. (Certified Record (C.R.), Item No. 4.) In the second notice of determination, the Service Center found that Claimant voluntarily quit her employment with Employer for unknown reasons, and that there was insufficient information provided to indicate whether Claimant had necessitous and compelling reasons for quitting. Based on those findings, the Service Center found Claimant ineligible for unemployment compensation benefits pursuant to Section 402(b) of the Law, relating to voluntarily terminating employment without cause of necessitous and compelling nature. The Service Center based its determination on information provided by Employer regarding Claimant's separation from employment, which we note clearly indicated that Claimant's employment was temporary and that the voluntary separation was because the position was "temporary holiday work." The last day to appeal the determination was February 28, 2012. In the interim, on or about February 17, 2012, it appears that Claimant received a notice of a hearing to be conducted on March 5, 2012. Thereafter, Claimant did not timely appeal the second notice of determination, mistakenly believing that any issues relating to her eligibility for compensation would be resolved at the March 5, 2012 hearing.
The notice of determination, dated January 24, 2012, is not part of the record now before the Court, but the notice of determination and subsequent related proceedings figure prominently in the circumstances surrounding this appeal.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b).
Employer, in the questionnaire it completed, informed the Service Center that Claimant was employed from November 18, 2011, through December 19, 2011; earned $7.25 per hour; worked an average of 24 hours per week; and earned a total of $529.25. In addition, although Employer checked the box that indicated that Claimant "voluntarily quit," the only other choice would have been for Employer to check the box that indicated that the separation was due to a "leave of absence." Employer clarified, however, that the reason for the "voluntarily quit" was that the position was "temporary holiday work." Employer also indicated that continuing work would not have been available to Claimant had she not voluntarily separated from her employment. (C.R., Item No. 3.)
Referee Maurice Pap La Rin conducted a hearing on March 5, 2012, and reversed the January 24, 2012 determination of the Service Center, thereby finding Claimant eligible for benefits. The decision, dated March 7, 2012, appears to address the issue of whether Claimant was ineligible for compensation due to failure to follow reporting requirements relating to wages Claimant earned during her employment with Employer, but it also addresses mistakes made by the Service Center and the circumstances surrounding Claimant's separation from employment with Employer. (C.R., Item No. 8, Claimant's hearing exhibits, decision of Referee Pap La Rin.) Specifically, Referee Pap La Rin found:
We note that the Referee's decision, dated March 7, 2012, does not identify any employer (neither First Quality nor Ross) in the "caption" area of the decision issued March 7, 2012.
1. The claimant was employed in a full-time position for First Quality where she was separated under eligible conditions as of October 25, 2011.
2. The claimant filed her Application for Benefits effective October 23, 2011 via a telephone conversation on October 25, 2011.
. . .
5. The claimant notified the Unemployment Compensation Service Center via the internet that she had accepted part-time employment as of November 19, 2011.
6. The claimant reported her part-time employment with Ross Library properly under the internet applications.
7. The Unemployment Compensation Service Center mistakenly attributed this to multiple employers with return to work for First Quality and also with Ross Library.
. . .
12. The claimant never advised the Unemployment Compensation Service Center that she had voluntarily quit the employment with Ross Library but, instead [she]
was released from that employment due to it being seasonal employment and not being scheduled.(Emphasis added). Referee Pap La Rin further explained in his reasoning:
The claimant gives competent and credible testimony as well as documentation in the form of questionnaires completed by the claimant, but not included in the documents provided to the referee by the Unemployment Compensation Service Center. The file for the record, which was to contain those documents and questionnaires that the claimant had completed to explain in writing what the circumstances were, were not considered in the claimant's opinion by the Unemployment Compensation Service Center at the time they issued their determination of denial. The referee notes that the denial was issued on January 24, 2012, the same day that the claimant was in conversation with the Unemployment Compensation Service Center regarding the nature of the separation . . . . Based upon the testimony given by the claimant and the documents provided to the referee, the referee cannot conclude that claimant in any way intentionally violated . . . reporting requirements for the period of December 10, 2011, through January 14, 2012 and must find the claimant eligible for benefits for all weeks at issue.(Id.)
Following the issuance of the March 7, 2012 decision, Claimant appears to have received one lump sum check for benefits, but no other payments followed. After numerous calls to the Service Center, Claimant learned that she would receive no further payments as a result of her failure to appeal the second notice of determination.
Claimant filed a late appeal to the second notice of determination, which she mailed March 30, 2012, and which the Service Center apparently received on April 6, 2012. (C.R., Item No. 5.) In her petition for appeal, Claimant explained that she believed that all the issues relating to her eligibility for unemployment compensation benefits had been resolved at the March 5, 2012 hearing. Claimant also contended that, despite many phone calls to unemployment compensation authorities regarding the status of her benefits following the hearing, she was told "that everything was fine and/or time needed to pass for the referee's ruling to go through [the] system." (C.R., Item No. 5.) She did not learn of the problem or the need to file a second separate appeal until March 28, 2012. (Id.)
Referee Jennifer Confer conducted a hearing to determine whether Claimant filed a timely and valid appeal of the second determination pursuant to Section 501(e) of the Law. At the hearing, Claimant and Claimant's husband, Michael Walsh, provided testimony. (C.R., Item No. 8.) Claimant also introduced into evidence a copy of the earlier Referee's decision, dated March 7, 2012.
Claimant testified that she received the second notice of determination on February 13, 2012, but she had already filed an appeal from the first notice of determination on January 31, 2012. (Id. at 2). She believed that the second notice was part of the initial notice of determination, and that the hearing would resolve all of the issues. (Id.) Even during the hearing, Claimant had no idea that an additional issue remained. (Id. at 4.) She testified that following the hearing, when she called the Service Center, she was assured that everything was in order and that she would soon receive a lump sum or back payments owed and also benefits going forward. (Id. at 5.) Claimant explained that when she first got laid off, she started working at the library, reported her hours on-line, and never earned enough to affect her unemployment compensation. (Id. at 9.)
Claimant's husband, Michael Walsh, provided similar testimony. He explained that it was not clear to them that it was a separate issue from the first one or that it needed a separate appeal. (Id. at 4.) Rather, they believed it was a response to the fact that Claimant had appealed. (Id. at 5.) "[I]t didn't even occur to [them] that a different issue would come up a month after [the Service Center] sent the first [notice of determination]." (Id.) He explained that the situation occurred because Claimant got a month-long job with Employer, working temporary hours, because she likes the library. (Id. at 7-9.) When Employer stopped scheduling Claimant because the holiday hours were over, she reported it to the Service Center, using the on-line reporting system. (Id.) The choices offered on the reporting system were fired, quit, or "other," and Claimant chose "other." (Id. at 8.) They were not sophisticated enough to know that, as a result of that choice, two separate issues would arise a month apart, requiring two separate hearings. (Id.) They did not realize the importance of ineligibility based on Section 402(b) of the Law versus Section 501(c) of the Law. (Id.)
Following the hearing, Referee Confer issued a decision, dated April 26, 2012, dismissing Claimant's appeal as untimely. Claimant appealed the matter to the Board.
By order dated June 1, 2012, the Board affirmed the decision of Referee Confer and dismissed Claimant's appeal as untimely. In so doing, the Board issued the following findings of fact:
1. A Notice of Determination (determination) was issued to the claimant on February 13, 2012, denying benefits under Section 402(b) of the Law beginning with the compensable week ending December 24, 2011.
2. A copy of this determination was mailed to the claimant at her last known post office address on the same date.
3. The claimant received the determination.
4. The notice informed the claimant that February 28, 2012, was the last day on which to file an appeal from this determination.(C.R., Item No. 9.) The Board, with little discussion of the facts and relevant legal standard for nunc pro tunc review, dismissed the appeal. The Board, in concluding that the appeal was untimely, noted that the appeal period is mandatory and that Claimant did not file her appeal within the fifteen-day appeal period established by Section 501(e) of the Law. The Board reasoned that Claimant's "failure to recognize that she had to file a separate appeal for the February 13, 2012, determination does not establish good cause for filing a late appeal." (Id.) Claimant then filed the subject petition for review with this Court.
5. The claimant filed her appeal by mail on March 30, 2012.
6. The claimant had received a separate Notice of Determination on January 24, 2012, denying benefits under Regulation 65.14 for the claim weeks ending December 10, 2011 [through] January 14, 2012, and had filed an appeal from that determination.
7. The claimant did not understand that she had to file a separate appeal for the February 13, 2012 determination.
8. The claimant was not misinformed or misled by the unemployment compensation authorities concerning her right or the necessity to appeal.
9. The 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.
Finding of fact number nine, although couched as a finding, is actually a conclusion of law or a mixed conclusion of law and fact.
On appeal, Claimant argues that the Board committed an error of law in dismissing her appeal and failing to allow her to appeal nunc pro tunc. As noted above, Section 501(e) of the Law provides that unless a claimant files an appeal with respect to a notice of determination within fifteen calendar days after it was mailed to the claimant's last known post office address, such determination "shall be final and compensation shall be paid or denied in accordance therewith." The 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 timely appeal 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). As a result, 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). The appeal, however, must be filed within a short time after the claimant or his counsel learns of and has an opportunity to address the untimeliness. Id. at 384-85, 671 A.2d at 1131.
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.
Claimant argues that the manner in which the Service Center handled her separation from employment with Employer caused confusion regarding the necessity to appeal the second notice of determination. In other words, the mishandling of her unemployment compensation matter constituted a breakdown in the administrative process, such that nunc pro tunc relief is warranted. The Board counters that Claimant is not entitled to appeal nunc pro tunc, because Claimant received the second notice of determination, dated February 13, 2012, and she was not misinformed or misled by the unemployment compensation authorities during the fifteen-day time period for filing an appeal between February 13, 2012, and February 28, 2012. While we agree with the Board that Service Center employees did not mislead Claimant during that time period, we note that the Board in no way acknowledges the mishandling of the claim on the part of the Service Center that placed Claimant in this position.
It is undisputed that Claimant, while receiving unemployment compensation benefits, acquired a temporary, part-time position with Employer, earning less than her partial benefit credit. Moreover, Claimant properly reported to the Service Center her earnings and separation from employment with Employer. (C.R., Item No. 8, Claimant's hearing exhibits, Referee Pap La Rin decision's at Finding of Fact (F.F.) No. 6.) Thus, Claimant's earnings from her employment with Employer did not reduce, or in any way affect, her continued receipt of unemployment compensation benefits relating to her separation from employment with First Quality. Furthermore, because Claimant earned less than her partial benefit credit amount from her part-time employment with Employer, loss of her employment with Employer could not disqualify Claimant from receiving continued compensation benefits relating to her employment with Employer, regardless of the reason for the separation. See Richards v. Unemployment Comp. Bd. of Review, 480 A.2d 1338, 1339 (Pa. Cmwlth. 1984). Nonetheless, as found by Referee Pap La Rin, despite Claimant having properly reported her earnings and having informed the Service Center on January 24, 2012, of the nature of her separation from employment with Employer, the Service Center "mistakenly attributed this to multiple employers with return to work for First Quality and also with Ross Library," (C.R., Item No. 8, Claimant's hearing exhibits, Referee Pap La Rin decision at Finding of Fact (F.F.) No. 7). As a result, the Service Center mistakenly issued the first notice of determination, improperly finding Claimant ineligible. This initial mistake on the part of the Service Center necessitated a response by Claimant. The Service Center then compounded the mistake when, nineteen days later and apparently based on no change in circumstances, it issued the second notice of determination, finding Claimant to be ineligible for yet another improper reason.
Pursuant to Section 4(u) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 753(u), an individual is considered "unemployed," and thus eligible for benefits, "with respect to any week of less than full-time work if the remuneration paid or payable to him with respect to such week is less than his weekly partial benefit rate plus his partial benefit credit." Prior to January 1, 2013, the partial benefit credit was calculated as "forty per centum (40%) of the [claimant's] weekly benefit rate or six dollars whichever is greater." Section 4(m.3) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, added by the Act of December 17, 1959, P.L. 1397, as amended, 43 P.S. § 753 (m.3).
The Pennsylvania Unemployment Compensation Handbook (UC Handbook), available on the Bureau's website, explains the interplay between part-time employment and the partial benefit credit, and when earnings from a part-time job may affect unemployment compensation benefits being received by a claimant for separation from another job. The UC Handbook provides, in part, as follows:
PART-TIME EMPLOYMENT(A copy of the UC Handbook may be found at: http://www.portal.state.pa.us/portal/server.pt?open=514&objID=552117&mode=2.)
You are not eligible to receive benefits for any week in which you are working full time. However, you may be eligible for benefits if . . . you are separated from one job but continue to have part-time employment with another employer(s).
If you are working part-time during a week, and earn no more than your partial benefit credit (see page 3), your earnings will not reduce your benefits for that week. If you earn more than your partial benefit credit, the amount of your earnings that exceed your partial benefit credit will reduce your benefits for that week on a dollar-for-dollar basis. If you earn more than the sum of your weekly benefit rate and your partial benefit credit, you are not eligible for benefits.
Pursuant to the precedent established by this Court's opinion in Richards v. Unemployment Compensation Board of Review, 480 A.2d 1338 (Pa. Cmwlth. 1984), when claimant leaves a part-time job at which the claimant was earning less than the amount of his partial benefit credit, the loss of the part-time job is irrelevant to the on-going payment of regular unemployment compensation benefits. This is because the loss of the part-time job does not increase the amount of weekly unemployment compensation benefits for which an employee is eligible, and, thus, it does not impose an added burden on the fund. See Richards, 480 A.2d at 1339. Here, the record shows that Claimant's partial benefit credit was $230 per week and that she reported wages during the relevant time period that were less than $230 per week. (C.R., Item No. 1.)
As a result of this mishandling of her claim, Claimant was forced to act when she would not otherwise have been required to act or risk losing unemployment compensation benefits due to the errors committed by the Service Center. Claimant, not being sufficiently sophisticated to understand the consequence of the repeated errors by the Service Center, did not understand the need to appeal the second notice of determination. In other words, Claimant misstepped in her attempts to navigate her way through the Service Center's errors. As a result, Claimant, who was placed in this position as a result of the Service Center's mistakes surrounding her proper reporting of earnings from a part-time, temporary position, is without unemployment compensation benefits. These circumstances constitute a breakdown in the administrative process, and the Board erred when it concluded otherwise.
While we recognize that the Service Center is not legally obligated to give claimants notice of all consequences stemming from an adverse decision, we are troubled by the lack of any reference anywhere in the record to a potential impact on benefits granted in connection with Claimant's separation from First Quality as a result of the part-time position with Employer. See Wojciechowski v. Unemployment Comp. Bd. of Review, 407 A.2d 142, 143 (Pa. Cmwlth. 1979). In Wojciechowski, this Court held that the lack of notice to a claimant that the referee's decision could result in claims for reimbursement of compensation paid, did not justify a late appeal. Id. at 143. In so doing, the Court specifically opined that due process does not require that referees advise pro se claimants on specific points of law. Id. at 143-44. We note that the case now before the Court is distinguishable from Wojciechowski because here, unlike in Wojciechowski, Claimant argues more than lack of knowledge of the consequences. Rather, Claimant, in the matter now before the Court, argues lack of knowledge and mishandling of the claim by the Service Center. We are also troubled by the Service Center's practice of issuing multiple notices of determinations over a period of time, without providing individuals with sufficient context as to the reason for the issuance of more than one determination of eligibility, especially where an appeal is pending, as in the case now before us. Unemployment compensation authorities should be mindful not to create circumstances that cause needless confusion that otherwise could be avoided through the provision of more complete information or explanation, particularly given the importance of unemployment compensation benefits to those who have lost their jobs. --------
For those reasons, we must conclude that the Board erred when it dismissed Claimant's appeal as untimely. Claimant established a breakdown in the administrative process and filed her appeal within a short time of learning of the need to do so. See Cook, 543 Pa. at 383-84, 671 A.2d at 1131.
Accordingly, the order of the Board is reversed and the matter is remanded to the Board for further proceedings.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 13th day of May, 2013, the order of the Unemployment Compensation Board of Review (Board) is hereby REVERSED, and the matter is remanded to the Board for further proceedings.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge