Opinion
No. 858 C.D. 2014
03-10-2015
Deare Welsh, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Deare Welsh (Claimant) petitions this Court for review of the Unemployment Compensation (UC) Board of Review's (UCBR) May 9, 2014 order dismissing Claimant's appeal under Section 501(e) of the UC Law (Law). Essentially, the issue before the Court is whether the UCBR's decision is supported by substantial evidence. After review, we affirm.
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e) (relating to time for appeal).
On March 29, 2004, the Philadelphia UC Service Center mailed Claimant: a Notice of Determination (Determination) denying UC benefits under Section 402(b) of the Law as of the week ending December 7, 2002, based on her voluntary separation from Eastern Research Services, Inc. (Employer); a Fault Overpayment Determination (Overpayment Determination) under Section 804(a) of the Law; and a Notice of Penalty Weeks Determination (Penalty Determination) imposing 16 penalty weeks against Claimant. Claimant's address in 2004 was 1613 Clifton Avenue, Sharon Hill, Pennsylvania 19079. The Determinations were mailed to Claimant at 1613 Clifton Avenue, Sharon Hill, Pennsylvania 19079. All three Determinations informed Claimant that April 13, 2004 was the last day to file an appeal.
43 P.S. § 802(b) (relating to voluntarily leaving work without cause of a necessitous and compelling nature).
A copy of the Determination was also mailed to Employer.
43 P.S. § 874(a).
On June 22, 2009, the Department of Labor and Industry (Department) filed a lien against Claimant in the common pleas court. On October 23, 2012, Claimant inquired of the Department regarding her lien. On October 23, 2012, the Department mailed Claimant a copy of the Penalty Determination and an appeal form with instructions. Claimant filed her appeal on November 9, 2012. A Referee held a hearing on January 2, 2013. On January 4, 2013, the Referee dismissed Claimant's appeal as untimely pursuant to Section 501(e) of the Law. Claimant appealed to the UCBR. On March 11, 2013, the UCBR affirmed the Referee's decision. Claimant appealed to this Court.
On August 28, 2013, this Court vacated the UCBR's March 11, 2013 order and remanded the case for the UCBR "to take new evidence, if necessary, to identify which determination is the subject of Claimant's appeal, and determine whether Claimant's appeal therefrom was timely." Welsh v. Unemployment Comp. Bd. of Review (Pa. Cmwlth. No. 602 C.D. 2013, filed August 2, 2013), slip op. at 5 (emphasis added). On November 26, 2013, a Hearing Officer held a hearing. On May 9, 2014, the UCBR affirmed the Referee's dismissal. Claimant appealed to this Court.
"Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence." Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).
Claimant argues that the UCBR's findings of fact are not supported by substantial evidence in the record. Specifically, Claimant contends this Court remanded the matter to the UCBR to clarify from which determination Claimant appealed and because no supplementary evidence was submitted at the remand hearing there was insufficient evidence to support the UCBR's conclusion that Claimant's appeal was untimely. We disagree.
Substantial evidence is relevant evidence upon which a reasonable mind could base a conclusion. In deciding whether there is substantial evidence to support the [UCBR'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 which can logically and reasonably be drawn from the evidence.Sanders v. Unemployment Comp. Bd. of Review, 739 A.2d 616, 618 (Pa. Cmwlth. 1999).
Contrary to Claimant's assertion, prior to the remand hearing, on November 21, 2013, the Department submitted the following documents to the Hearing Officer: the March 29, 2004 Determination finding Claimant ineligible for benefits under Section 402(b) of the Law, the same Determination addressed to Employer, the March 29, 2004 Overpayment Determination, and two computer print-outs of Claimant's UC claim record. All of the documents were entered into the record at the remand hearing without objection by Claimant. See Notes of Testimony (N.T.) November 26, 2013 at 2-3. In addition, when specifically asked by the Hearing Officer if she was appealing the March 29, 2004 Determination finding her ineligible for benefits under Section 402(b) of the Law, Claimant responded: "Yes." Id. at 3. Further, when asked if she was also appealing the March 29, 2004 Overpayment Determination, Claimant replied: "Yes." Id. at 4. Finally, Claimant produced the March 29, 2004 Penalty Determination with her November 9, 2012 appeal. All three determinations clearly stated thereon that the last day to file an appeal from said Determination was April 13, 2004. See N.T., November 26, 2013 Ex. B-8a, B-8c; Original Record, Item No. 3 at 5. Based upon the foregoing, there was substantial evidence in the record to support the UCBR's findings that Claimant was appealing all three March 29, 2004 Determinations, and her appeal was untimely.
At the hearing, Claimant also testified that she was appealing a tax lien and submitted a copy of the tax lien to the Hearing Officer. However, the document she submitted was a bill for her "LIENED OVERPAYMENT ACCOUNT[,]" not the actual lien notification. N.T., November 26, 2013, Ex. C-1. --------
Claimant asserts that there was a delay in the issuance of the Determinations which should excuse her lateness in appealing the Determinations. Specifically, all three March 29, 2004 Determinations concerned her leaving employment in 2002, thus the Department was negligent in not notifying her sooner. We disagree.
Section 501(e) of the Law, . . . 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.'Russo v. Unemployment Comp. Bd. of Review, 13 A.3d 1000, 1002 (Pa. Cmwlth. 2010). "Failure to timely appeal an administrative agency's decision constitutes a jurisdictional defect." Id. "The appeal provisions of the law are mandatory: failure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal." Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (quoting U.S. Postal Serv. v. Unemployment Comp. Bd. of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 1993)).
If an appeal is not filed within fifteen days of the mailing of the determination, it becomes final, and the [UCBR] does not have the requisite jurisdiction to consider the matter. 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. Therefore, an appeal filed one day after the expiration of the statutory appeal period must be dismissed as untimely.Dumberth, 837 A.2d at 681 (citations omitted). In this case, because Claimant's appeal was not filed until November 9, 2012, more than eight years after the April 13, 2004 deadline, it was clearly untimely.
We acknowledge that an appeal's untimeliness is not always fatal.
[T]he [UCBR] may consider an untimely appeal in limited circumstances. The burden to establish the right to have an untimely appeal considered is a heavy one because the statutory time limit established for appeals is mandatory. An appellant may satisfy this heavy burden in one of two ways. First, [s]he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, [s]he can show non-negligent conduct beyond h[er] control caused the delay.Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (citations omitted). "Where notice is mailed to a claimant's last known address and not returned by the postal authorities as undeliverable, the claimant is presumed to have received it and is barred from attempting to appeal after the expiration of the appeal period provided in Section 501(e) of the Law." Mihelic v. Unemployment Comp. Bd. of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979). "[S]imply stating that a notice was not received is not a sufficient reason for extending the time for filing an appeal." ATM Corp. of Am. v. Unemployment Comp. Bd. of Review, 892 A.2d 859, 864 (Pa. Cmwlth. 2006).
Here, although Claimant claimed she did not receive the Determinations, she subsequently admitted that she simply threw them away without opening them. Claimant expressly testified at the Referee hearing:
And I've always - and to be perfectly honest with you, I've always gotten something from Unemployment, but I tore it
up. I never bothered to look at it because I'm not on Unemployment. So what do I need to look at [it] for? And I know it sounds irresponsible, but I've done my part. I've gotten - I received the benefits. When I got a new job, my responsibility [was] to contact unemployment. And let them know, listen, I have a job. I no longer need the benefits, and they stopped.N.T., January 2, 2013 at 4-5. When the Referee tried to clarify that "those letters were probably letters in reference to . . . this issue[,]" Claimant explained:
And if I had opened those letters sooner, I would have honestly took care of it. But I just figured, hey, listen. I'm doing the right thing. I don't [sic] have a job. I got a full-time job now.Id. at 7-8. While the record does not contain an explanation for the Department's delay in issuing the Determinations, the UCBR found Claimant's negligence to be the reason for her untimely appeal. See Hessou. Because Claimant admitted she received the Determinations, the Department's delay in sending them is not a sufficient reason for extending the time for filing her appeal.
. . . .
But I'd never bothered to open those letters. Because I'm like, why are they sending me something? I've done what I was supposed to do. I ma[d]e the phone call and let them know I'm not (sic) working. I don't need your guys' benefits anymore.
For the above-stated reasons, the UCBR's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 10th day of March, 2015, the Unemployment Compensation Board of Review's May 9, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge