L. Kameha v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lahaina Kameha, :
Petitioner :
:
v. : No. 366 C.D. 2019
: Submitted: August 23, 2019
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 30, 2019
Lahaina Kameha (Claimant), pro se, petitions for review of an
adjudication of the Unemployment Compensation Board of Review (Board) that
dismissed her appeal as untimely under Section 502 of the Unemployment
Compensation Law (Law).2 Discerning no error by the Board, we affirm.
Claimant worked part-time for Reliance First Capital (Employer) as a
Telemarketer Verification Agent beginning on August 24, 2016. Her last day was
1
This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed
the status of senior judge.
2
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822. Section
502 of the Law provides, in relevant part:
The parties and their attorneys or other representatives of record and the department
shall be duly notified of the time and place of a referee’s hearing and of the referee’s
decision, and the reasons therefor, which shall be deemed the final decision of the
[B]oard, 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.
June 16, 2017. Claimant filed a claim for unemployment compensation benefits,
which the Unemployment Compensation (UC) Service Center denied under Section
402(b) of Law, 43 P.S. §802(b).3 Claimant appealed, and the Referee held a hearing
on October 3, 2017. Claimant appeared and testified at this hearing. The Referee
concluded that Claimant failed to establish a necessitous and compelling reason for
leaving her employment and affirmed the UC Service Center’s determination that
Claimant was ineligible for benefits. The Referee mailed his decision to Claimant
on October 5, 2017. The Referee’s decision stated that the final date to appeal was
October 20, 2017.
Claimant appealed to the Board on November 7, 2018. On November
16, 2018, the Board informed Claimant that her appeal was untimely. Claimant
requested a hearing, prompting the Board to remand the matter to the Referee for
further proceedings on whether the Board could still exercise jurisdiction.
The Referee conducted a telephonic hearing on January 31, 2019.
When asked whether she received a copy of the Referee’s October 5, 2017, decision,
Claimant testified as follows:
[Referee:] Did you receive the Referee’s Decision?
***
[Claimant:] That’s the one that I did not get right away. I had
been in the process of working with an agent from LifeLock with
the fraudulent activity that was going on with my mail and with
my bank accounts and all sorts of things.
3
Section 402(b), 43 P.S. §802(b), states, in relevant part, that a claimant shall be ineligible for
compensation for any week in which the claimant’s unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature.
2
[Referee:] Okay. But you attended the hearing. So after
attending the hearing, are you saying you never received the
Referee’s Decision?
[Claimant:] Yes.
Notes of Testimony, 1/31/2019, at 5-6 (N.T.__). After some further questioning,
Claimant acknowledged that she did, in fact, receive the Referee’s decision. The
following exchange ensued:
[Referee:] So why was your appeal so late, ma’am?
[Claimant:] Well, for two reasons. One I did not receive the letter
saying that it had to be addressed by that time. And then, the
other reason was that I was working with someone who was
working with me as far as fraudulent activity going on with the
mail and with my identity and things like that.
N.T. 6. Later, when asked again why her appeal was late, Claimant stated that she
received the Referee’s decision more than a year late. Eventually, Claimant stated
that she received the Referee’s decision in October 2017 and faxed an appeal of the
decision from a CareerLink office before the end of that month. She testified that
she called the UC Service Center to verify that her fax was received and an employee
told her that her appeal had been sent to the Board.
The Referee transmitted the hearing transcript to the Board for
disposition, and on February 25, 2019, the Board dismissed Claimant’s appeal as
untimely. The Board reasoned:
The last day to file an appeal from this decision was October 20,
2017. However, the claimant did not file an appeal until
November 7, 2018. The claimant advances several excuses for
her late appeal, yet, appeared to be confused about the appeal
process. Nevertheless, the claimant acknowledged that she
received the determination of the Referee in October of 2017,
3
and that she attempted to fax an appeal in that same month.
However, the record is void of any evidence on this attempted
faxed appeal. The claimant also appeared to assert that her mail[]
was fraudulently intercepted and forwarded. However, this is
discredited and contrary to her acknowledgment that she
attempted to appeal in October of 2017.
Board Adjudication at 2. Claimant now petitions for this Court’s review.
On appeal,4 Claimant focuses on the merits of her case, arguing that the
Referee erred in determining she was ineligible for benefits under Section 402(b) of
the Law, 43 P.S. §802(b). Claimant contends she had a necessitous and compelling
reason for quitting her job. However, that issue is beyond the scope of this appeal.
The sole issue before this Court is whether the Board erred in dismissing Claimant’s
appeal as untimely.
Claimant addresses the timeliness issue only in passing by suggesting
that her appeal was late due to fraudulent activity with her mail. She asks this Court
to “overlook” the fact that her appeal was late. Claimant Brief at 13. The Board
responds that Claimant failed to provide an adequate excuse for her late appeal, and
that it properly dismissed the appeal for lack of jurisdiction. We agree.
Section 502 of the Law provides that an appeal to the Board must be
filed “within fifteen days after the date of [the referee’s] decision.” 43 P.S. §822.
The 15-day time limit is mandatory; the Board may not consider a claimant’s
eligibility for benefits if her appeal is untimely. Shea v. Unemployment
Compensation Board of Review, 898 A.2d 31, 33 (Pa. Cmwlth. 2006). The appeal
4
This Court’s review of the Board’s adjudication determines whether Claimant’s constitutional
rights were violated, errors of law were committed, or findings of fact were not supported by
substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d
695, 697 (Pa. Cmwlth. 1994).
4
period cannot be “extended as a matter of grace or indulgence.” Id. at 33 (quotations
omitted). In other words, the 15-day appeal deadline is strictly enforced. Dumberth
v. Unemployment Compensation Board of Review, 837 A.2d 678, 681 (Pa. Cmwlth.
2003) (“[A]n appeal filed one day after the expiration of the statutory appeal period
must be dismissed as untimely.”).
However, the Board may consider an untimely appeal nunc pro tunc in
limited circumstances. Hessou v. Unemployment Compensation Board of Review,
942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appellant must show: (1) the
administrative agency engaged in fraudulent behavior or manifestly wrongful or
negligent conduct; or (2) non-negligent conduct beyond the appellant’s control
caused the delay. Id. at 198. Without an adequate excuse for the late filing, the
Board must dismiss the appeal. Id.
Here, Claimant offered inconsistent testimony when questioned about
her late appeal. She first testified that she never received the Referee’s decision
because of fraudulent activity with her mail. Then she claimed to have received the
decision a year late. Finally, Claimant testified that she received the Referee’s
decision in October 2017 and faxed her appeal by the end of the month. The Board
rejected this testimony because Claimant offered no evidence of an attempt to fax an
appeal. The Board also discredited Claimant’s testimony that her mail had been
fraudulently diverted since it was contrary to her own testimony that she attempted
to appeal in 2017. Because the Board is the fact finder in unemployment
compensation cases and has complete authority over credibility determinations, we
are bound by those determinations. Kelly v. Unemployment Compensation Board of
Review, 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Thus, we agree with the Board that
5
Claimant failed to provide an adequate excuse for filing her appeal more than one
year late. Nor did she establish that her untimely appeal was the result of fraud or a
breakdown in the administrative or judicial process. Accordingly, because the Board
did not err in dismissing Claimant’s appeal, we affirm its adjudication.
_____________________________________
MARY HANNAH LEAVITT, President Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Lahaina Kameha, :
Petitioner :
:
v. : No. 366 C.D. 2019
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 30th day of October, 2019, the order of the
Unemployment Compensation Board of Review dated February 25, 2019, in the
above-captioned matter is AFFIRMED.
_____________________________________
MARY HANNAH LEAVITT, President Judge