F. Brown v. UCBR ( 2017 )


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  •              IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Faye Brown,                                      :
    Petitioner                :
    :
    v.                               :
    :
    Unemployment Compensation                        :
    Board of Review,                                 :   No. 9 C.D. 2017
    Respondent                      :   Submitted: May 12, 2017
    BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE JOSEPH M. COSGROVE, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE COSGROVE1                                   FILED: November 30, 2017
    Faye Brown (Claimant) petitions this Court for review of a December
    9, 2016 decision of the Unemployment Compensation Board of Review (Board)
    denying her unemployment compensation benefits under Section 502 of the
    Unemployment Compensation Law (Law).2 Upon review, we vacate and remand.
    Claimant worked for Fiserv (Employer) from August 2, 1976 until
    March 1, 2016. She filed for unemployment compensation benefits on March 6,
    1
    Currently, there is a vacancy among the commissioned judges of this Court. Pursuant to
    our opinion circulation rules, all commissioned judges voted on the opinion and a tie vote resulted.
    Therefore, this opinion is filed pursuant to Section 256(b) of the Internal Operating Procedures of
    the Commonwealth Court, 210 Pa. Code § 69.256(b).
    2
    Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    822.
    2016, citing “lack of work/laid off” as the reason for separation. (Certified Record
    (C.R.), Item 2, Internet Initial Claims at 2.) On July 11, the Unemployment
    Compensation Service Center (Service Center) issued a Notice of Determination
    denying Claimant benefits under Section 402(h) of the Law. 3 The final date to
    appeal was July 26, 2016. Claimant filed her appeal on July 28, 2016. Following a
    hearing held August 16, 2016, the Referee issued a decision on August 23, 2016,
    dismissing Claimant’s appeal as untimely. The Referee’s order gave a final appeal
    date of September 7, 2016. Claimant filed her appeal to the Referee’s decision on
    September 27, 2016. A hearing was held on November 6, 2016, solely on the issue
    of the timeliness of Claimant’s second appeal. Following this hearing, the Board
    issued a decision and order dismissing the Claimant’s appeal as untimely under
    Section 502 of the Law.4 This appeal followed.5
    DISCUSSION
    Claimant argues her appeal should not be dismissed as untimely,
    because the delay in filing was due to non-negligent circumstances beyond her
    control. More specifically, Claimant’s son is mentally ill and her mother suffered a
    stroke in August 2016. Claimant contends these events made her personal life
    overwhelming and resulted in her appeal being filed late.
    3
    Section 402(h) of the Law provides generally that persons who are self-employed are
    ineligible to receive unemployment compensation benefits. 43 P.S. § 802(h).
    4
    43 P.S. § 822.
    5
    This Court’s review is limited to a determination of whether constitutional rights were
    violated, errors of law were committed, or findings of fact were not supported by substantial
    evidence. Oliver v. Unemployment Compensation Board of Review, 
    5 A.3d 432
    , 438 n.2 (Pa.
    Cmwlth. 2010).
    2
    The Board responds that Claimant bears a heavy burden to show the
    untimeliness of her appeal should be excused. The Board argues that the medical
    issues of third parties, here Claimant’s son and mother, are not sufficient to excuse
    a twenty-day delay.     Additionally, the Board contends Claimant presented no
    evidence as to how the medical ailments of her son and mother affected her ability
    to file a timely appeal. As a result, the Board asserts Claimant has not met the burden
    required for a nunc pro tunc appeal.
    Section 502 of the Law provides an appeal of the referee’s decision
    must be filed within fifteen days after the date of such decision. 43 P.S. § 822. A
    timely appeal is a jurisdictional prerequisite.         DiIenno v. Unemployment
    Compensation Board of Review, 
    429 A.2d 1288
    (Pa. Cmwlth. 1981). The statutory
    time limit for filing an appeal is mandatory in the absence of fraud or manifestly
    wrongful or negligent conduct by an administrative agency. Das v. Unemployment
    Compensation Board of Review, 
    399 A.2d 816
    (Pa. Cmwlth. 1979). However, if “an
    appeal is not timely because of non-negligent circumstances… 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.” Cook v. Unemployment Compensation Board of Review, 
    671 A.2d 1130
    , 1131 (Pa. 1996). A petitioner in an appeal nunc pro tunc must proceed
    with reasonable diligence once she knows of the necessity to take action. Stanton v.
    Department of Transportation, Bureau of Driver Licensing, 
    623 A.2d 925
    (Pa.
    Cmwlth. 1993).
    3
    At the November 7, 2016 hearing, Claimant testified as follows.
    Claimant described her personal life as “completely overwhelming” due to her adult
    son’s mental illness and her mother’s recovery from a massive stroke. (C.R., Item
    17, Transcript of Testimony (T.T.) at 7.) Claimant admitted she didn’t understand
    “the process” very well and she “probably didn’t read the documents as thoroughly
    as [she] should have.” 
    Id. The late
    filing was not due to negligence on the part of
    the state, it was Claimant’s “inability to be as attentive” as she should have been. 
    Id. Claimant didn’t
    have “any other good excuse, other than [her] personal life.” 
    Id. at 8.
    Once Claimant understood the process and consequences, she began to fax and
    mail her appeal documents. 
    Id. at 9.
    Lack of familiarity with Board regulations and procedure does not
    excuse an untimely filing.      Hessou v. Unemployment Compensation Board of
    Review, 
    942 A.2d 194
    (Pa. Cmwlth. 2008). Illness on the part of a claimant or
    claimant’s counsel may, however. Cook; see also Bass v. Commonwealth, 
    401 A.2d 1133
    (Pa. 1979). In an unreported opinion, a three-judge panel of this Court
    concluded the illness of a claimant’s mother was not a sufficiently non-negligent
    circumstance that nunc pro tunc relief was appropriate. Joe v. Unemployment
    Compensation Board of Review, (Pa. Cmwlth., No. 1811 C.D. 2010, filed March 21,
    2011), 
    2011 WL 10846448
    . In a subsequent, also unreported, decision, this Court
    similarly concluded the claimant had not established non-negligent reasons for her
    appeal. The Court noted, however, it saw no reason to conclude “that the sudden
    illness of a close family member of an appellant may not be considered a non-
    negligent circumstance allowing for a nunc pro tunc appeal in the proper case.”
    4
    Douglas v. Unemployment Compensation Board of Review, (Pa. Cmwlth. No. 1903
    C.D. 2013, filed July 16, 2014), slip op. at 7, n.3, 
    2014 WL 3532960
    at *4, n.3.6
    Despite the heavy burden which an aggrieved claimant bears, nunc pro
    tunc relief from an untimely appeal is equitable in nature. See Criss v. Wise, 
    781 A.2d 1156
    , 1159 (Pa. 2001)(“Even where a party has filed an untimely notice of
    appeal, however, appellate courts may grant a party equitable relief in the form of
    an appeal nunc pro tunc in certain extraordinary circumstances.”)(emphasis added);
    see also Bass. The adage “aequitas prima est – where equity applies, equity is
    supreme” – applies in these circumstances. As such, inferences in favor of granting
    nunc pro tunc relief must be carefully and exactingly considered.
    In this case, Claimant faced the serious medical circumstances
    surrounding both her mother and her son. In August, her mother suffered a massive
    stroke. At the same time, her son’s mental health, a condition apparently long
    standing and worsening at that time, was at issue for Claimant, ultimately leading to
    his November 2016 involuntary commitment hearing. In rejecting Claimant’s
    argument, the Board referred to her situation as “[n]ormal strains and pressures of
    daily life” which were insufficient to establish “good cause for a late appeal.” C.R.,
    Item 18, Board’s Decision and Order at 2. This finding, however, does no justice to
    our suggestion in Douglas that “the sudden illness of a close family member” may
    be considered a non-negligent circumstance “allowing for a nunc pro tunc appeal in
    the proper case.” Douglas, slip op. at 7, n.3, 
    2014 WL 3532960
    at *4, n.3. For
    Claimant, the illnesses affecting two family members seem anything but “normal
    6
    Unreported memorandum opinions of this Court may be cited “for [their] persuasive
    value, but not as binding precedent.” Section 414, Commonwealth Court Internal Operating
    Procedures. 210 Pa.Code § 69.414.
    5
    strains and pressures of daily life,” and the Board’s finding of same is not supported
    by substantial evidence. As such, and against this backdrop, we cannot agree that
    the Board properly considered the family health conditions Claimant faced.
    For these reasons, we vacate and remand this matter to the Board to
    consider whether these conditions constitute the “proper case” for which to allow
    nunc pro tunc relief. Douglas.
    ___________________________
    JOSEPH M. COSGROVE, Judge
    6
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Faye Brown,                           :
    Petitioner          :
    :
    v.                        :
    :
    Unemployment Compensation             :
    Board of Review,                      :   No. 9 C.D. 2017
    Respondent           :
    ORDER
    AND NOW, this 30th day of November, 2017, the December 9, 2016
    Order of the Unemployment Compensation Board of Review is vacated and this
    matter is remanded for proceedings consistent with this appeal. Jurisdiction is
    relinquished.
    ___________________________
    JOSEPH M. COSGROVE, Judge