D.A. Gallagher v. UCBR ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debra A. Gallagher, :
: No. 2742 C.D. 2015
Petitioner : Nos. 2751-2758 C.D. 2015
: Submitted: October 14, 2016
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 17, 2017
Debra A. Gallagher (Claimant) petitions for review from nine orders
of the Unemployment Compensation Board of Review (Board), dated November
24, 2015, which affirmed nine decisions of a Referee dismissing as untimely
Claimant’s appeals from more than thirty Notices of Determination under Section
501(e) of the Unemployment Compensation Law (Law).1 For the reasons that
follow, we are constrained to affirm.
1
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 provides in relevant part:
(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 ...
(Footnote continued on next page…)
Claimant filed for unemployment compensation benefits on various
occasions between 2007 and 2014 while working for Aramark Sports, LLC
(Employer). On July 8, 2014, Employer faxed its records of Claimant’s wage
information for the years 2007 through 2014, which reflected higher earnings than
Claimant had reported for many benefit weeks. Certified Record (C.R.) Item Nos.
3, 6.
Between July 21 and August 1, 2014, the Erie Service Center sent five
Advance Notices to Claimant, alerting her to the possibility that she had been
overpaid for numerous benefit weeks specifically identified in the notices, during
2007, 2008, 2009, 2011, 2012, 2013, and 2014.2 Each of the notices requested that
Claimant complete an attached questionnaire explaining the discrepancies in
reported earnings and return it to the claims office by a specified date. Each notice
also advised Claimant that her failure to return the questionnaire may result in the
termination of benefits and the assessment of an overpayment for benefits already
paid. The notices informed Claimant that she could call the claims center office at
the telephone number provided if she wished to request a telephone interview.
Claimant did not respond to any of these notices.
(continued…)
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.
2
Two Advance Notices dated July 21, 2014, referenced weeks ending October 20, 2012
through May 25, 2013, and weeks ending October 12, 2013 through June 21, 2014. An Advance
Notice, dated July 29, 2014, referenced weeks ending October 8, 2011 through April 21, 2012.
Two Advance Notices, dated August 1, 2014, referenced weeks ending September 22, 2007
through August 16, 2008, and weeks ending September 20, 2008 through August 22, 2009.
2
By six separate Notices of Determination mailed on July 9 and 10,
2014, the Service Center informed Claimant of office errors that caused non-fault
overpayment3 in 2012 and 2013, totaling $1454.00, and $20.00 in non-fault
overpayment related to the exhaustion of Claimant’s dependents’ allowance. The
last day for Claimant to appeal these determinations was July 24, 2014, and July
25, 2014, respectively.
Thereafter, over the course of three days, from August 20, 2014
through August 22, 2014, the Service Center sent Claimant more than twenty
Notices of Determination.4 C.R. Item No. 8. All told, the Service Center
established fault overpayments5 totaling $12,396.006 and assessed approximately
3
Section 804(b)(1) of the Law provides for the establishment of non-fault overpayments
and states:
Any person who other than by reason of his fault has received with
respect to a benefit year any sum as compensation under this act to
which he was not entitled shall not be liable to repay such sum but
shall be liable to have such sum deducted from any future
compensation payable to him with respect to such benefit year, or
the three-year period immediately following such benefit year, in
accordance with the provisions of this paragraph.
43 P.S. §874(b)(1).
4
Claimant asserts that she received a total of twenty-six notices during that three-day
period. There are some discrepancies between the Claim Records (C.R. Item No. 1) and the
Notices of Determination (C.R. Item No. 8) as to exactly how many notices were sent. For
purposes of this Court’s analysis, the exact number is not necessary.
5
Section 804(a) of the Law provides for the establishment of fault overpayments and
states, in pertinent part:
Any person who by reason of his fault has received any sum as
compensation under this act to which he was not entitled, shall be
liable to repay to the Unemployment Compensation Fund to the
credit of the Compensation Account a sum equal to the amount so
(Footnote continued on next page…)
3
$1,817.00 in penalties7 for claim weeks ranging from September 29, 2007 through
June 21, 2014. Id. The last day for Claimant to appeal these determinations was,
respectively, September 4, 2014, September 5, 2014, and September 8, 2014.
Claimant filed appeals for each of the determinations on September
14, 2015; a Statement of Balance Due mailed September 4, 2015, was attached to
the appeals and stated that Claimant owed $8,426.32. C.R. Item No. 9. The
Referee’s office addressed Claimant’s appeals in the nine aforementioned
decisions.
The Referee held a hearing on October 16, 2015, to determine
whether Claimant had filed valid and timely appeals under Section 501(e) of the
Law. Claimant appeared pro se and Employer did not attend. Claimant testified
that her appeals were delayed because she was caring for an autistic, special needs
child who requires attention twenty-four hours a day, seven days a week; she
received some, but not all, of the notices that were sent; and she believed that some
(continued…)
received by him and interest at the rate determined by the
Secretary of Revenue. . . .
43 P.S. §874(a).
6
This includes a fault overpayment of $325.00 under the federal Emergency
Unemployment Compensation (EUC) Act of 2008, Title IV of the Supplemental
Appropriations Act of 2008, P.L. 110–252, 122 Stat. 2323, Sections 4001–4007, 26 U.S.C.
§3304 note.
7
Under Section 801(c) of the Law, penalties in the amount of 15% of the overpaid
compensation shall be assessed against a claimant who “makes a false statement knowing it to be
false, or knowingly fails to disclose a material fact to obtain or increase any compensation or
other payment . . . and as a result receives compensation to which he is not entitled. . . .” 43 P.S.
§871(c).
4
of these determinations had been previously adjudicated. Notes of Testimony at 6-
7.8
8
Claimant testified in relevant part, as follows:
R[eferee]: Okay. So did you receive this Notice of
Determination, all these Notices?
C[laimant]: Some of them I have received; some of them I have
not.
R: Okay. So when you received some of them, did you
read them to see what they had to say?
C: I normally call them on the phone and I talk but
they’re giving me like different things to talk about. They – when
I asked them a question how is that, you know, because their pay
cut is different from Aramark’s. Every time – before in the
beginning I was going by my paystubs, by the amount on my
paystubs. They told me not to do . . .
R: I understand all of that. Yes, I understand that but
today’s issue is for me to know whether you filed a timely appeal
or not. So after that, the other issues can be dealt with. So today,
let’s concentrate and focus on why you did not appeal the
Determinations in a timely manner.
C: Oh. The reason why I had an appeal – I have a nine-
year-old son that’s autistic. He’s a special need child. He just
started having seizures.
R: Okay. He’s autistic?
C: He’s autistic. He’s a special need child.
R: Okay. So though you received some of the
Determinations, you were unable to appeal the Determinations?
C: Yes.
R: Why?
C: Because he was – yes, my son’s a 24-hours person,
you know, a child that I have to take care of.
R: So he needs your attention 24 . . .
C: 24/7, yes.
R: Okay. All right. So that’s the reason? So . . .
C: Yes, that’s the main reason and he was just
hospitalized in August two days. He had a very bad seizure. He’s
been having seizures and I’m trying to like get like him . . .
R: I understand.
(Footnote continued on next page…)
5
(continued…)
C: . . . kind of different tests done on him now because
they don’t know why he’s having them now.
R: Okay. Ma’am, the issue is the same for all nine
cases.
C: Yes.
R: So for all nine cases, that’s the reason, right, that
you did not appeal the Determinations?
C: Well, no, this is – I’m going to say – I’m not going
to say that. I’m going to say about 2007, 2008, I did see a Referee
here two years ago. They’re bringing some old cases up actually
from the time when I did see a Referee here and I did contact UC
Service and I did told [sic] them about it.
R: They are old.
C: Yes. And I . . .
R: [Inaudible] old.
C: . . . also had talked to a person by a name of Julie up
in Harrisburg, PA about the whole situation and I have not heard
back from her neither [sic].
R: All right. Okay.
C: And I’m talking – these cases is [sic] old from like
eight, seven, eight years ago and it should have been already
cleared, not – should be prolonged and going and going and going.
R: Okay.
C: I mean I’m not going to dispute like if I – I know
I’m not going to owe like they saying that I owe. I know that’s
impossible. But I do have my current paystubs.
R: We won’t need your current paystubs because we
are talking a period in 2007, late 2007 and early 2008. So I don’t
know whether you have your paystubs or not.
C: I don’t have none [sic] of my paystubs. I do have
my paystubs from like 2013.
R: Okay.
C: 2014 and 2015 but all the rest I do not have.
R: Okay. All right. If there is nothing further, ma’am,
then I’m going to bring this hearing to a close. Okay?
C: Okay.
6
The Referee found that the Notices of Determination were mailed to
Claimant at her correct mailing address and were not returned as undeliverable;
Claimant was not misinformed or misled regarding her right to appeal; and there
was no evidence that the late filing was caused by fraud or its equivalent by the
administrative authorities, a breakdown in the appellate system, or non-negligent
conduct. Findings of Fact Nos. 2-3, 7, 8. Therefore, the Referee dismissed all nine
appeals as untimely. Claimant appealed the Referee’s decisions to the Board,
asserting that these notices addressed “old claims” and that she was not able to
speak as desired or to offer proof at the hearing before the Referee. C.R. Item No.
15.
The Board affirmed the Referee’s decisions and issued its own
findings of fact and conclusions of law. C.R. Item No. 16. The Board discredited
Claimant’s assertion that she did not receive some of the determinations and held
that Claimant did not credibly overcome the presumption of receipt. Id. The
Board also determined that Claimant did not credibly establish that caring for her
son caused her to delay filing her appeals for more than a year. Id. The Board
concluded that the filing of the late appeals was not caused by fraud or the
equivalent by the administrative authorities, a breakdown in the appellate system,
or non-negligent conduct and dismissed Claimant’s appeals as untimely. Id.
On appeal to this Court,9 Claimant argues that nunc pro tunc relief is
appropriate due to the “unconscionable amount of paperwork” from the Service
Center, which caused confusion and resulted in an administrative breakdown. She
9
Our scope of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, and whether necessary findings of fact are
supported by substantial evidence. Kirkwood v. Unemployment Compensation Board of Review,
525 A.2d 841, 843-44 (Pa. Cmwlth. 1987).
7
contends that the long delay between the claim years and the determination notices
compounded her confusion, and that she believed these determinations were
addressing matters that had been previously adjudicated.
However, Claimant’s argument concerning administrative breakdown
due to the number of Notices of Determination that were sent and the undue delay
in their mailing was not raised before the Board and cannot be raised for the first
time in this appeal. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S.
§703(a); Pa. R.A.P. 1551(a); Chapman v. Unemployment Compensation Board of
Review, 20 A.3d 603, 611 (Pa. Cmwlth. 2011).
With respect to Claimant’s argument that she thought that the notices
related to prior claims, she directs our attention to a 2013 Referee decision which
reversed and/or modified the Service Center’s determinations for claim weeks in
2009, 2010, and 2011, which is appended to her Brief as Exhibit A. However, that
decision is not part of the certified record of this appeal. It is settled that “[a]n
appellate court is limited to considering only those facts that have been duly
certified in the record on appeal. For purposes of appellate review, that which is
not part of the certified record does not exist. Documents attached to a brief as an
appendix or in a reproduced record may not be considered by an appellate court
when they are not part of the certified record.” B.K. v. Department of Public
Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations omitted). Accordingly,
we may not consider this decision in our disposition of this appeal. Moreover, we
note that the claim weeks addressed in the 2013 Referee’s decision fall within the
seven-year period discussed here, but are not the weeks at issue in this case.
Section 501(e) of the Law provides that a party has fifteen days to
appeal a determination or it becomes final and the Board does not have the
8
requisite jurisdiction to consider the matter. Hessou v. Unemployment
Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). An
appeal filed even one day after the fifteen-day appeal period is untimely. Id. The
“failure to file an appeal within fifteen days, without an adequate excuse for the
late filing, mandates dismissal of the appeal.” United States Postal Service v.
Unemployment Compensation Board of Review, 620 A.2d 572, 573 (Pa. Cmwlth.
1993).
The Supreme Court has emphasized that the remedy of an appeal nunc
pro tunc or “now for then” is intended to restore the right to appeal only when it
was lost as the result of extraordinary circumstances. Union Electric Corp. v.
Board of Property Assessment, Appeals and Review of Allegheny County, 746 A.2d
581, 584 (Pa. 2000). To this end, nunc pro tunc relief may be warranted “where an
administrative body acts negligently, improperly or in a misleading way.” Id.
Likewise, an appeal nunc pro tunc may be granted where the extraordinary
circumstances causing the delay were the result of non-negligent conduct of the
claimant or her counsel; if the appeal is brought within a very short time after the
claimant or counsel learns of, and has an opportunity to address, the delay; and the
untimeliness and the time period which elapses is very short in duration. Cook v.
Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996);
see also, UPMC Health System v. Unemployment Compensation Board of Review,
852 A.2d 467 (Pa. Cmwlth. 2004) (discussing the need for a petitioner in an appeal
nunc pro tunc to proceed with due diligence once she knows of the need to take
action).10
10
In UPMC Health System, the May 12, 2003 determination granting the claimant
benefits was not mailed to the employer until June 18, 2003, well after the appeal deadline of
(Footnote continued on next page…)
9
In support of her assertions that nunc pro tunc relief is warranted in
this case, Claimant cites several unreported decisions of this Court involving delay
attributable to a breakdown in administrative process. However, the Board
specifically found that Claimant was not misinformed or misled by the
unemployment compensation authorities regarding her right or the necessity to
appeal. C.R. Item No. 16. Moreover, Claimant testified that the reasons she did
not file timely appeals were that she was overwhelmed with caring for her son and
that she believed that these issues were previously adjudicated. Regardless of the
number of notices that Claimant received, each advised her of the necessity to
appeal, and Claimant’s misunderstanding of her duty in this regard is not sufficient
to meet the burden required for the grant of a nunc pro tunc appeal. See, e.g.,
Finney v. Commonwealth, 472 A.2d 752, 753-54 (Pa. Cmwlth. 1984) (holding that
a claimant’s inability to understand the proper procedure does not excuse the
untimely filing of an appeal).
(continued…)
May 27, 2003, and it was sent to an incorrect address. The employer received it on June 19,
2003, and filed an appeal twelve days later, on July 1. 2003. The employer argued it was entitled
to appeal nunc pro tunc, but the Board concluded that the employer failed to meet its duty to
appeal within a very short duration, as required by Cook, because it waited twelve days to
appeal.
On further appeal, we reversed the Board’s order. We acknowledged our holding in
Stanton v. Department of Transportation, Bureau of Driver Licensing, 623 A.2d 925 (Pa.
Cmwlth. 1993), denying a request for nunc pro tunc relief because the petition was filed eleven
days after the law firm employee responsible for filing appeals had returned to work. Although
the twelve day delay in UPMC Health System was of longer duration, we observed that prior
cases involved periods of delay beyond the statutory appeal period. We held that the employer
in UPMC Health System could not be deprived of the full fifteen-day period provided by statute,
giving it until at least July 3, 2003, in which to appeal.
10
Accordingly, the Board is affirmed.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debra A. Gallagher, :
: No. 2742 C.D. 2015
Petitioner : Nos. 2751-2758 C.D. 2015
:
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 17th day of March, 2017, the orders of the
Unemployment Compensation Board of Review, dated November 24, 2015, at
Nos. B-584418. B-584419, B-584420, B-584421, B-584422, B-584423, B-584424,
B-584425, B-584426, are AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge