A.E. Weir v. UCBR ( 2016 )


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  •                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Anne E. Weir,                                :
    Petitioner       :
    :
    v.                      :
    :
    Unemployment Compensation                    :
    Board of Review,                             :    No. 1004 C.D. 2015
    Respondent               :    Submitted: December 4, 2015
    BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
    HONORABLE MARY HANNAH LEAVITT, Judge1
    HONORABLE ANNE E. COVEY, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                       FILED: March 21, 2016
    Anne E. Weir (Claimant) petitions this Court for review of the
    Unemployment Compensation (UC) Board of Review’s (UCBR) May 26, 2015 order
    affirming the Referee’s dismissal of her appeal pursuant to Section 501(e) of the UC
    Law (Law).2 Essentially, the issue before the Court is whether the UCBR erred by
    dismissing Claimant’s appeal as untimely. After review, we affirm.
    Claimant applied for UC benefits after being discharged by Mardinly
    Enterprises, LLC (Employer) on October 1, 2014. At that time, Claimant’s address
    was 1220 Steel Road, Havertown, Pennsylvania 19083. On November 21, 2014, the
    Lancaster UC Service Center mailed Claimant a Notice of Determination denying her
    benefits under Section 402(e) of the UC Law (Law).3                 On that same day, the
    1
    This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
    became President Judge.
    2
    Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
    821(e) (relating to time for appeal).
    3
    43 P.S. § 802(e) (referring to Claimant’s ineligibility due to willful misconduct).
    Lancaster UC Service Center mailed Claimant a Fault Notice of Overpayment
    Determination in accordance with Section 804(a) of the Law,4 and a Notice of
    Penalty Determination pursuant to Section 801(b) of the Law.5                         All three
    Determinations were mailed to Claimant at 1220 Steel Road, Havertown,
    Pennsylvania 19083, and expressly informed Claimant that December 8, 2014 was
    the last day to file an appeal.
    According to the Department of Labor and Industry’s records, Claimant
    appealed from the Determinations on March 25, 2015. A Referee hearing was held
    on April 20, 2015. By April 20, 2015 decision, the Referee dismissed Claimant’s
    appeal as untimely pursuant to Section 501(e) of the Law. Claimant appealed to the
    UCBR and requested a remand hearing. On May 26, 2015, the UCBR denied
    Claimant’s remand request and affirmed the Referee’s decision. Claimant appealed
    to this Court.6
    Claimant argues that because she filed the appeal from the
    Determinations by fax on December 8, 2014, the UCBR erred by dismissing her
    appeal as untimely.
    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
    4
    43 P.S. § 874(a).
    5
    43 P.S. § 871(b).
    6
    Employer intervened.
    “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).
    2
    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). Although Claimant maintains that
    she filed her appeal by fax, Section 101.82 of the Department’s Regulations states, in
    relevant part: “A party filing an appeal by fax transmission . . . accepts the risk that
    the appeal may not be properly or timely filed.” 
    34 Pa. Code § 101.82
    .
    In the instant matter, Claimant testified that she received the
    Determinations, and explained:
    R[eferee] Now, were you aware that each Determination
    specified that the final day to file a timely appeal was
    December 8, 2014?
    C[laimant] Correct. And I did file.
    R Okay. Do you have any evidence of that?
    C I do not. I faxed it. . . .
    R Okay. When you say you did it by fax[,] you don’t have
    the confirmation or a sheet . . .
    C No.
    R . . . or anything to show me?
    3
    C I do not.
    Certified Record Item 10, Notes of Testimony, April 20, 2015 (N.T.) at 5.     In
    addition, Claimant stated:
    EW [Employer representative Frank Morgan (Morgan)]
    And in your employment with [Employer] . . . you would
    print out confirmations to faxes, so you’re familiar with that
    procedure.
    C No, I didn’t. I never printed out confirmations of faxes
    for [Employer].
    [Morgan] But you were aware that you could?
    C Yes.
    N.T. at 6. Claimant clarified:
    R Did you keep a copy of the fax that you allege that you
    originally sent?
    C Yes. I have that.
    R Okay. Do you have it with you?
    ....
    C Yes. What I sent.
    ....
    R Did you just refax the same . . .
    C Yes.
    R . . . document? Okay.
    C Yeah . . .
    R So then you don’t have a separate copy of . . .
    C No.
    R . . . a different appeal?
    C No.
    4
    N.T. at 7. Claimant explained that because she was caring for her husband after his
    open heart surgery, she forgot about the appeal until her counsel advised her to follow
    up.7 Claimant recalled that after she learned that her appeal deadline had passed, she
    faxed another appeal on March 25, 2015.
    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). This Court has held that a claimant’s failure to confirm a
    successful fax transmission does not qualify as non-negligent conduct beyond her
    control. Lopresti v. Unemployment Comp. Bd. of Review, 
    55 A.3d 561
    , 563 (Pa.
    Cmwlth. 2012).
    “In unemployment compensation matters, ‘the [UCBR] is the ultimate
    fact finder and is empowered to resolve conflicts in the evidence and to determine the
    credibility of witnesses.’” Goppman v. Unemployment Comp. Bd. of Review, 
    845 A.2d 946
    , 947 n.2 (Pa. Cmwlth. 2004) (quoting Owoc v. Unemployment Comp. Bd. of
    Review, 
    809 A.2d 441
    , 443 (Pa. Cmwlth. 2002)). Here, the UCBR “[did] not find
    credible [] [C]laimant’s assertion that she filed an appeal by fax on December 8,
    2014.” UCBR Dec. at 1.
    In light of the UCBR’s credibility determination, and there being no
    evidence that Claimant’s untimely appeal was due to “the administrative authority
    7
    Claimant was not represented by counsel at the time the appeals were due.
    5
    engag[ing] in fraudulent behavior or manifestly wrongful or negligent conduct[,]” or
    “non-negligent conduct beyond [Claimant’s] control,” and Claimant’s appeal was not
    filed until March 25, 2015, 108 days after the December 8, 2014 deadline, we hold
    that the UCBR properly affirmed the Referee’s decision dismissing Claimant’s appeal
    as untimely. Hessou, 
    942 A.2d at 198
    .
    For the above-stated reasons, the UCBR’s order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge
    6
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Anne E. Weir,                         :
    Petitioner     :
    :
    v.                   :
    :
    Unemployment Compensation             :
    Board of Review,                      :   No. 1004 C.D. 2015
    Respondent        :
    ORDER
    AND NOW, this 21st day of March, 2016, the Unemployment
    Compensation Board of Review’s May 26, 2015 order is affirmed.
    ___________________________
    ANNE E. COVEY, Judge