K. DePaul-Green v. UCBR ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathleen DePaul-Green, :
Petitioner :
:
v. : No. 1807 C.D. 2017
: SUBMITTED: October 16, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 9, 2018
Kathleen DePaul-Green (Petitioner) appeals from the Unemployment
Compensation Board of Review’s (the UCBR) order dismissing her appeal of the
Referee’s decision denying benefits as untimely under Section 502 of the
Unemployment Compensation Law1 (Law). We affirm.
The findings of fact set forth in the UCBR’s Decision and Order
(Agency Record “A.R.,” Item 16) are not disputed by Petitioner. On August 17,
2017, the Referee issued the decision denying Petitioner benefits. (Referee’s
Decision/Order, 8/17/17, A.R., Item 12.) The same day, a copy of the Referee’s
decision was mailed to Petitioner at her last known address. (Id.) The Referee’s
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Section 502 of the Law provides that a referee's decision is a final decision of the Board "unless
an appeal is filed therefrom, within fifteen days after the date of such decision. . . ." Id.
decision included notice of the right to appeal and stated that interested parties had
fifteen (15) days in which to file a valid appeal. (Id.) As indicated in the mailing, to
be timely Petitioner’s appeal would have had to have been filed on or before
September 1, 2017. (Id.) There is no indication that the mailing of the copy of the
Referee’s decision was returned by the Postal Service as undeliverable (UCBR
Decision and Order, 11/6/17, A.R., Item 16, Second Finding of Fact No. 12).
Petitioner’s pro se appeal was filed on September 5, 2017, four days
past the running of the fifteen-day limitation period provided by Section 502 of the
Law. (See Claimant’s Petition for Appeal from Referee’s Decision/Order w/
Attachments, 9/5/17, A.R., Item 13). On September 21, 2017, the UCBR advised
Petitioner in writing that her appeal appeared to be untimely and that, if she believed
that the appeal was or should be deemed timely filed, she must reply in writing and
request a hearing to provide an opportunity for testimony regarding the timeliness
of the appeal. (Id.) Petitioner, again acting pro se, sent a written response, but did
not request a hearing on the timeliness issue. (Claimant’s Request for
Reconsideration, 10/2/17, A.R., Item 15).
The UCBR’s order dismissing Petitioner’s appeal was issued
November 6, 2017. Petitioner’s appeal to this Court followed.
On appeal,3 Petitioner raises one issue: Whether the UCBR erred in
finding that Petitioner’s appeal was filed untimely? Petitioner’s argument is as
follows:
2
The UCBR’s Decision and Order contains eight findings of fact, but due to an enumeration
error the last five findings are numbered 1-5. (UCBR Decision and Order, 11/6/17, A.R. Item 16
at pp. 1-2).
3
Based on the argument presented here, our scope of review is limited to determining whether
an error of law was committed, an issue over which we exercise plenary review. See Dumberth v.
Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003).
2
It is manifestly wrong and negligent for the Referee to
issue a decision when the fifteen-day appeal period will
run at the beginning of holiday weekend [sic] where the
filing office will be closed on the following Monday. In
the instant matter, Petitioner calculated the time for filing
her appeal to the best of her ability and filed on the next
available business day, Tuesday, September 5, 2017.
Under these circumstances, no hearing was required under
Section 502 of the Unemployment Compensation Law …
As such Petitioner’s appeal should be accepted nunc pro
tunc.
(Petitioner’s Amended Brief at 7-8.)4
Section 502 of the Law specifically provides that "[t]he referee's
decision, and the reasons therefor, ... shall be deemed the final decision of the board,
unless an appeal is filed therefrom, within fifteen days after the date of such
decision...." 43 P.S. § 822; see also 34 Pa.Code § 101.82(a).5 This fifteen-day time
limit is mandatory; if an appeal is not timely filed within the specified time period,
the determination becomes final, and the Board does not have the requisite
jurisdiction to consider the matter. UGI Utils., Inc. v. Unemployment Comp. Bd. of
Review, 776 A.2d 344, 347 (Pa. Cmwlth. 2001). "Appeal periods, even at the
administrative level, are jurisdictional and may not be extended as a matter of grace
4
The fifteen-day limitation period ran on the Friday (September 1, 2017) before a long holiday
weekend (Labor Day 2017 was Monday, September 4, 2017).
5
Department of Labor and Industry regulations provide as follows:
A party seeking to appeal a Department determination shall file an
appeal in the form and manner specified in § 101.81 (relating to
filing of appeal from determination of Department) and this section
on or before the 15th day after the date on which notification of the
decision of the Department was delivered personally to the appellant
or mailed to him at his last known post office address.
34 Pa.Code § 101.82(a).
3
or indulgence; otherwise, there would be no finality to judicial action." Dumberth v.
Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003).
Therefore, even an appeal filed merely one day after the expiration of the fifteen-
day time period must be dismissed as an untimely appeal. Id.
Section 101.61(a) of the Department of Labor and Industry's
regulations provides:
If an appeal from a decision of the Department or an
application for further appeal appears to have been filed
beyond the applicable time limit, the tribunal shall advise
the appealing party in writing that it appears not to have []
jurisdiction because of the late filing, and that the appeal
or application for further appeal will be dismissed without
a hearing unless the appealing party notifies the tribunal in
writing within the succeeding 15 days of the date of such
notice, that he contends the appeal or application for
further appeal was timely filed and that he desires a
hearing. If no reply from the appealing party is received
within the 15 day period, or if the appealing party does not
request a hearing, the tribunal shall dismiss the appeal or
application for further appeal.
34 Pa. Code §101.61(a) (emphasis supplied). Section 101.61(a) provides that a party
seeking to establish the timeliness of an appeal is required to request a hearing at
which the party can present the reasons for the untimeliness, i.e., evidence that would
support an appeal nunc pro tunc. Id. If a claimant fails to request a hearing on the
issue of timeliness, the UCBR is without jurisdiction to further consider the matter
under Section 502 of the Law and is precluded from considering the facts underlying
the timeliness of the appeal. Han v. Unemployment Comp. Bd. of Review, 42 A.3d
1155, 1158 (Pa. Cmwlth. 2012).
Petitioner did not request a hearing on the issue of timeliness and her
argument regarding the timing of the Referee’s mailing of the decision appears for
the first time in Petitioner’s brief to the Court. Because Petitioner did not comply
4
with the requirement of requesting a hearing on the timeliness of her appeal, the
UCBR took the action required of it and dismissed her appeal. See 34 Pa.Code §
101.61(a).6
For the above reasons, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
6
We note that Petitioner’s appeal and request for reconsideration were filed pro se (Claimant’s
Petition for Appeal from Referee’s Decision/Order w/Attachments, 9/5/17, A.R., Item 13;
Claimant’s Request for Reconsideration, 10/2/17, A.R., Item 15). The fact that Petitioner, acting
pro se, may not have understood the mandatory nature of the limitation period cannot be remedied
by this Court:
Any lay person who chooses to represent himself in a legal
proceeding must assume the risk that his lack of expertise and legal
training may prove to be his undoing. [The c]laimant's failure to
adhere to the rules of appellate procedure and his failure to raise any
issues within our scope of review preclude any meaningful review
by this Court.
Daly v. Unemployment Comp. Bd. of Review, 631 A.2d 720, 722 (Pa. Cmwlth. 1993) (citation
omitted).
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kathleen DePaul-Green, :
Petitioner :
:
v. : No. 1807 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 9th day of November, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge