M.M. Graham v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary M. Graham, :
Petitioner :
: No. 254 C.D. 2019
v. :
: Submitted: August 2, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: October 2, 2019
Mary M. Graham (Claimant) petitions, pro se, for review of the February
7, 2019 order of the Unemployment Compensation Board of Review (Board)
dismissing her appeal as untimely under section 502 of the Unemployment
Compensation Law (Law).1 Upon review, we affirm.
The facts of this case are not in dispute. Claimant worked for the
Abramson Cancer Center of the University of Pennsylvania (Employer). (Certified
Record (C.R.) at Item No. 1.) Claimant was terminated and subsequently applied for
benefits on October 5, 2014. (C.R. at Item No. 3.) The local service center denied
Claimant’s application for benefits. Id. Claimant appealed to a referee, who concluded
1
Section 502 of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as
amended, 43 P.S. §822.
that Claimant was ineligible for benefits under sections 401, 4(u), and 404(d) of the
Law, that she had a fault overpayment under section 804(a) of the Law, and that she
was subject to a penalty under section 801(c). 43 P.S. §§801, 753(u), 804(d), 874(a),
and 871(c), respectively. Claimant filed her appeal from the referee’s decision more
than three years past the June 18, 2015 deadline.
The Board’s regulations state that its files are purged after two years. 34
Pa. Code §61.6;2 34 Pa. Code §101.54.3 As the appeal in this case was filed over three
2
Section 61.6 provides:
(a) Under the authority granted by section 209 of the law (43 P. S. §
769), the following categories of records pertaining to contributions
and benefit rights shall be subject to disposal according to schedules
or directives approved by the Bureau, and shall be issued through
the usual media for disseminating official Bureau instructions:
(1) Records which are not required in the transaction
of current business.
(2) Records which do not have administrative, legal
or research value.
(3) Records which do not have other values for
contribution liability or benefits entitlement to
warrant further preservation.
(b) Those contributions or benefits records which are established as
the result of a specific unemployment compensation program
controlled by the Federal government will be disposed of in
accordance with agreements entered into with the United States
Department of Labor.
(c) Records authorized for disposal under this section shall be
destroyed or otherwise disposed of in accordance with current
administrative and fiscal policies and with cognizance of obligation
of the Bureau to preserve the confidential character of the records.
3
Section 101.54 provides:
(a) The proceedings of appeal hearings, at both referee and Board
(Footnote continued on next page…)
2
years late, the records in Claimant’s case have been purged. Because of the limited
record provided to this Court, information regarding what occurred at the initial referee
hearing is minimal. However, evidence in the record is sufficient to make a proper
determination on the issue presented in this appeal. The referee’s decision was mailed
on June 3, 2015, which provided that an appeal must be filed within 15 days. (C.R. at
Item No. 4.) Claimant did not file an appeal from this decision until November 6,
2018, which was more than three years past the June 18, 2015 deadline. (C.R. at Item
No. 10.)
By letter dated November 21, 2018, the Board advised Claimant that her
appeal filed on November 6, 2018, was untimely, but that she could request to schedule
levels shall be recorded and preserved for a period of 2 years.
The record need not be transcribed unless a further appeal is filed.
In the event an application for further appeal is filed from the
decision of a referee, the record shall be transcribed and transmitted
to the Board, together with records and documents in the appeal
proceeding. At any time the Board may require the complete record
of a case, or a part thereof, to be transcribed and filed with the Board.
(b) When an interested party or his representative requests
information from the file of the Board in order to present and
maintain the issues at a hearing before a referee or the Board, or in
an appeal to the Court, such information (including the hearing
transcript, where the record has been transcribed) shall be made
available at a reasonable time to the party and his representative,
without charge, at the office of the referee to whom the case was
assigned or at the central office of the Board in Harrisburg,
Pennsylvania, whichever is more convenient to the interested party
or his representative, for examination, copying and making
notations therefrom. An examination of the file shall be permitted
only for purposes relating to the Unemployment Compensation Law
(43 P. S. §§ 751--882) and for no other proceeding or purpose.
34 Pa. Code §101.54 (emphasis added)
3
a hearing to allow her the opportunity to set forth the reasons why she believed her
appeal should still be accepted. (C.R. at Item No. 4.) By letter dated November 27,
2018, Claimant requested a hearing. (C.R. at Item No. 5.) By order dated December
13, 2018, the Board remanded the matter to the referee and directed that a hearing be
scheduled. (C.R. at Item No. 7.)
The referee conducted a hearing on January 15, 2019, during which
Claimant testified in person. (C.R. at Item No. 9.) Employer did not appear at the
hearing. (C.R. at Item No. 9.) When initially asked by the referee why she did not
appeal the decision timely, Claimant responded, “Probably because I was just upset
and didn’t know how to go about this and I think all of this is a very honest mistake.”
Id. Claimant explained the many difficult life events she was going through at the time
to support her reason for filing late, including the stress of losing her job and trying to
survive and find a new job. Id. When asked again why she filed late, Claimant stated,
“I don’t know. I guess because I was just confused or just upset, I don’t know. I can’t
answer that, I’m sorry . . . .” Id. Claimant did not put forth any additional testimony
or evidence as to the cause of her untimely appeal. Id.
The referee forwarded a transcript of the hearing to the Board, which
issued its February 7, 2019 decision dismissing Claimant’s appeal as untimely under
section 502 of the Law. (C.R. at Item No. 10.) In its decision, the Board noted that
Claimant being upset and confused about the system did not justify her late appeal,
particularly because the records showed she knew about the decision, and had begun
paying back the overpayment and penalties assessed by the referee, and still waited
over three years to file an appeal. Id. The Board relied on section 502 of the Law,
finding that the time for filing an appeal was mandatory and that it had no jurisdiction
to entertain the appeal absent limited exceptions not present in this case. Id.
4
Importantly, the Board found that Claimant’s late filing was not caused by
administrative authorities committing fraud or its equivalent, a breakdown in the
appellate system, or by non-negligent conduct. Id.4
On appeal,5 Claimant argues that the Board erred in dismissing her appeal
as untimely because she inadvertently missed the deadline because she was upset after
losing her full-time job and was unable to secure another full-time job. While we are
sympathetic with Claimant’s situation following her termination, she fails to present
sufficient evidence justifying acceptance of her late appeal.
Section 502 of the Law provides that a party “shall be duly notified . . . of
the referee’s decision, and the reasons therefor, which shall be deemed the final
decision of the board, unless an appeal is filed therefrom, within fifteen days after the
date of such decision the board acts on its own motion, to review the decision of the
referee.” 43 P.S. §822. This Court has previously held that “[a]ppeal periods, even at
the administrative level, are jurisdictional and may not be extended as a matter of grace
or indulgence. . . .” Dumberth v. Unemployment Compensation Board of Review, 837
A.2d 678, 681 (Pa. Cmwlth. 2003). In other words, the referee’s decision becomes
final, and the Board does not have jurisdiction to consider the matter, if an appeal is
4
Generally, an untimely appeal, or 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 appealing party, his
counselor, or a third party. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130,
1131 (Pa. 1996). This Court has previously noted that such relief may be considered in “limited
circumstances” and that “[t]he 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.” Hessou v.
Unemployment Compensation Board of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008).
5
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d 122,
126 n.3 (Pa. Cmwlth. 2015).
5
not filed within the 15-day period. Hessou v. Unemployment Compensation Board of
Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). In fact, even an appeal filed merely
one day after the expiration of the 15-day time period must be dismissed as an untimely
appeal. Shea v. Unemployment Compensation Board of Review, 898 A.2d 31, 33 (Pa.
Cmwlth. 2006) (citing Dumberth, 837 A.2d at 681).
“The pressure of life events are insufficient to excuse an untimely appeal.
This court consistently rejects such excuses.” Carney v. Unemployment Compensation
Board of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018); see also Burgher v.
Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1929 C.D. 2014,
filed July 7, 2015) (unreported) (claimant dealing with anxiety and stress from layoff);
Rabe v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1785 C.D.
2013, filed February 24, 2014) (unreported) (claimant dealing with financial stress and
multiple pending court cases); Menges v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 2230 C.D. 2009, filed April 22, 2010) (unreported) (claimant
dealing with a death in the family and lingering effects of a medical condition).6
Here, Claimant asserts that she was upset, confused, and made an honest
mistake. However, as the Board correctly noted, Claimant’s complaints about her
confusion, mistaken beliefs, and the difficulty of her life at that time were insufficient
to meet the requirements of a nunc pro tunc appeal or otherwise justify her untimely
appeal, which was filed more than three years after the deadline for the same.
Therefore, the Board properly dismissed Claimant’s appeal as untimely and we are
constrained to conclude that the Board did not err in making this determination.
6
Burgher, Rabe, and Menges, are unreported opinions. Under section 414(a) of this Court’s
Internal Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa.
Code §69.414(a).
6
Accordingly, the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mary M. Graham, :
Petitioner :
: No. 254 C.D. 2019
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 2nd day of October, 2019, the Unemployment
Compensation Board of Review decision dated February 7, 2019, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge