D. Harper v. WCAB (UPS) ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donte Harper, :
Petitioner :
:
v. : No. 1468 C.D. 2016
: Submitted: January 20, 2017
Workers’ Compensation Appeal :
Board (UPS), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: June 12, 2017
Petitioner Donte Harper (Claimant), acting pro se, petitions for review
of an order of the Workers’ Compensation Appeal Board (Board), which granted
United Parcel Service’s (Employer) motion to quash as untimely Claimant’s appeal
of a workers’ compensation judge’s (WCJ) order, denying Claimant’s claim
petition for workers’ compensation benefits. For the reasons that follow, we now
quash Claimant’s petition for review filed with this Court.
Claimant was previously employed by Employer as a package
handler. On May 14, 2014, Claimant filed a claim petition seeking workers’
compensation benefits. In his claim petition, Claimant alleged that he sustained a
work-related injury on March 18, 2014, when he fell off of a ladder onto his back
while handling a package. The matter was assigned to the WCJ, and Employer
filed an answer, denying the allegations in Claimant’s claim petition. Thereafter,
the WCJ conducted a hearing, at which both Claimant and Employer provided
testimony in connection with the claim petition. In addition, by order dated
February 20, 2015, the WCJ granted a petition to compel physical examination,
filed by Employer, directing Claimant to submit to an independent medical
examination (IME). Claimant failed to attend the IME scheduled pursuant to the
WCJ’s February 20, 2015 order. Thereafter, Employer filed a motion to dismiss
the claim petition, arguing that Claimant had violated the WCJ’s
February 20, 2015 order by failing to attend the scheduled IME.
The WCJ held a hearing on April 21, 2015, at which Employer
submitted evidence that it had properly notified Claimant of the March 19, 2015
IME and that Claimant had failed to attend that IME.1 At the conclusion of the
hearing, the WCJ issued an order, dated July 17, 2015, denying Claimant’s claim
petition, concluding that Claimant did not present substantial and competent
evidence that he suffered from a disability related to the March 18, 2014 incident.
Claimant filed an appeal with the Board. The appeal was dated
August 3, 2015, and the envelope had affixed to it a private “Pitney Bowes”
postmark, dated July 30, 2015. The Board, however, did not receive Claimant’s
appeal until August 17, 2015. Employer filed with the Board a motion to quash,
1
During the hearing, Claimant attempted to enter into evidence certain medical records,
but the WCJ instructed Claimant that he would need to make copies to give to Employer as well.
The WCJ further instructed Claimant that he could make copies in a room located near the
hearing room. Claimant left to make copies of his proposed exhibits, but he did not return to the
hearing. Counsel for Employer stated that she searched the building for Claimant, but she was
unable to locate him. In Claimant’s absence, the WCJ closed the record and set a briefing
schedule.
2
arguing that Claimant’s appeal was untimely. In ruling on the motion, the Board
concluded that the last date on which Claimant could have filed an appeal was
August 7, 2015,2 and that, because Claimant’s appeal did not bear a United States
Postal Service Postmark, it was bound to deem Claimant’s appeal filed on the date
it was received. Accordingly, the Board held that Claimant’s appeal was untimely,
and, the Board quashed Claimant’s appeal by order dated June 20, 2016.
Claimant attempted to petition this Court for review of the Board’s
order by mailing a letter, which the Court received on June 30, 2016. The Chief
Clerk of this Court sent a reply letter to Claimant that same day, informing
Claimant that:
The Court has received your recent communication
indicating your intention to appeal from a decision of the
[Board]. The Pennsylvania Rules of Appellate Procedure
(Pa. R.A.P.) require that in order to perfect your appeal
you must file a petition for review with this Court. . . .
The date of June 30, 2016 will be preserved as the date of
filing your appeal. This is the date your communication
indicating your intention to appeal was filed with this
Court. If this date is more than 30 days from the mailing
date of the decision that you are appealing, your appeal
may be dismissed because it is untimely. Unless your
perfected petition for review is filed and the filing fee (if
any) is paid within 30 days of the date of this notice, the
Court will take no further action in this matter. See Pa.
R.A.P. 121, 1512, 1514; Commonwealth Court Internal
Operating Procedures § 211.[3]
2
By this Court’s calculation, the last day to appeal was August 6, 2015—not
August 7, 2015. Regardless, this discrepancy is not material to our analysis.
3
Commonwealth Court Internal Operating Procedures § 211 provides, in pertinent part:
When the chief clerk receives a written communication that evidences an
intention to appeal an adjudication of a state administrative agency but does not
(Footnote continued on next page…)
3
Claimant failed to file a petition for review with the Court by July 30, 2016—the
deadline for perfecting his appeal. By letter dated August 10, 2016, the Chief
Clerk informed Claimant that the Court would take no further action on the matter.
Thereafter, on September 6, 2016, the Court received Claimant’s petition for
review and application for in forma pauperis (IFP). By order dated
October 17, 2016, the Court granted Claimant’s application for IFP status and
directed the parties to address the appealability of the underlying order in the
principal briefs on the merits.
On appeal,4 Claimant raises the following issues for review:
(1) whether the Board erred in dismissing his appeal as untimely, and (2) whether
the Board erred in denying Claimant’s claim petition. Employer, in addition to
addressing those issues, counters that Claimant’s petition for review filed with this
Court is untimely and should be quashed. Claimant does not address whether his
appeal is properly before this Court.
(continued…)
conform to the rules for an appellate petition for review, the chief clerk shall
time-stamp the written communication with the date of receipt.
The chief clerk shall advise the party by letter (1) of the procedures necessary to
perfect the appeal and (2) that the date of receipt of the communication will be
preserved as the date of filing of the appeal if that party files a fully conforming
petition for review within 30 days of the date of the chief clerk’s letter. If the
party fails to file a fully conforming petition for review within that period, the
chief clerk shall advise the party by letter that the court will take no further action
in the matter.
4
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§ 704.
4
First, we will address the timeliness of Claimant’s appeal to this
Court. As discussed above, the Board issued its decision on June 20, 2016. Under
Pennsylvania Rule of Appellate Procedure 1512(a)(1), Claimant had 30 days from
the entry of that order, or until July 20, 2016, to file his petition for review with
this Court. Employer asserts that because Claimant’s petition for review was not
filed until September 6, 2016, it was untimely and should be quashed. We agree.
Where a claimant submits, prior to the applicable filing deadline, a
letter evidencing an intent to file a petition for review of an agency order, we have
jurisdiction to consider the petition if the claimant perfects his or her petition for
review within 30 days of the date of the Chief Clerk’s letter. Larocca v.
Workmen’s Comp. Appeal Bd. (Pittsburgh Press), 592 A.2d 757, 761 (Pa.
Cmwlth.), appeal denied, 604 A.2d 251 (Pa. 1991). We may not, however, extend
this 30-day window for a claimant to perfect a petition for review. “[O]ur
jurisdiction is conditional on the party filing a perfected petition for review within
thirty days of the chief clerk’s letter. Once this thirty-day time period expires, the
date of the receipt of the pro se communication is no longer preserved and our
jurisdiction is extinguished.” DeWitt v. Unemployment Comp. Bd. of
Review, 6 A.3d 586, 588 (Pa. Cmwlth. 2010). September 6, 2016, the date
Claimant filed his petition for review, is over 60 days after June 30, 2016, the date
noted in the Chief Clerk’s letter. Thus, because Claimant failed to perfect his
petition for review within 30 days of the date of the letter sent by the Chief Clerk
of this Court, we must quash Claimant’s petition for review as untimely filed.
5
Accordingly, we quash Claimant’s petition for review.5
P. KEVIN BROBSON, Judge
Judge Cosgrove concurs in the result only.
5
Even if Claimant had timely perfected his petition for review with this Court, it is
apparent from the record that his appeal to the Board was also untimely. Pursuant to
Section 423(a) of the Pennsylvania Workers’ Compensation Act (Act), Act of June 2, 1915,
P.L. 736, as amended, 77 P.S. § 853, a party to a workers’ compensation adjudication
has 20 days to file an appeal with the Board. Appeals filed after this timeframe are untimely and
divest the Board of jurisdiction to reach the merits of the issues raised in the appeal. Sellers v.
Workers’ Comp. Appeal Bd. (HMT Constr. Servs., Inc.), 713 A.2d 87, 88 (Pa. 1998). An appeal
is considered filed as of the date of the United States Postal Service postmark on the envelope.
Id. When a party uses a private postmark, the appeal is deemed filed as of the date the Board
receives the appeal. Id. The failure to file a timely appeal divests the Board of jurisdiction to
reach the merits of the issues raised in the appeal. Mills v. Workers’ Comp. Appeal Bd. (Sch.
Dist. of Harrisburg), 24 A.3d 1094, 1096 (Pa. Cmwlth.), appeal denied, 34 A.3d 84 (Pa. 2011).
The WCJ denied Claimant’s claim petition by decision and order dated July 17, 2015.
Thus, pursuant to Section 423(a) of the Act, Claimant’s appeal to the Board should have been
filed by August 6, 2015. Claimant’s appeal form was dated August 3, 2016. The envelope
received by the Board, however, was stamped with a private postmark. Because Claimant used a
private postmark, the date the Board received the appeal is the relevant date for determining
whether Claimant’s appeal was timely filed. Claimant’s appeal form was not received by the
Board until August 17, 2015, which is beyond the deadline for Claimant to timely appeal the
WCJ’s order denying his claim petition. Thus, were we to consider this issue, we would
conclude that the Board did not err in dismissing Claimant’s appeal as untimely.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donte Harper, :
Petitioner :
:
v. : No. 1468 C.D. 2016
:
Workers’ Compensation Appeal :
Board (UPS), :
Respondent :
ORDER
AND NOW, this 12th day of June, 2017, petitioner Donte Harper’s
petition for review of the order of the Workers’ Compensation Appeal Board,
dated June 20, 2016, is hereby QUASHED as untimely.
P. KEVIN BROBSON, Judge