R. Byrd v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ruth Byrd, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : Nos. 1231, 1232, and 1233 C.D. 2019
Respondent : Argued: November 10, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: February 4, 2021
Ruth Byrd (Claimant) petitions for review of three substantially similar
orders of the Unemployment Compensation Board of Review (Board). The Board
adopted and incorporated the findings of fact and conclusions of law of a Referee,
who determined, after a hearing, that Claimant failed to file timely appeals from
various notices of determination issued by the Department of Labor and Industry
(Department). The Department found Claimant ineligible for unemployment
compensation (UC) benefits, determined fault overpayments, and imposed related
1
This case was assigned to the opinion writer before Judge Brobson succeeded Judge
Leavitt as President Judge.
penalties. Claimant maintains she is entitled to nunc pro tunc relief deeming her
appeals timely. Upon review, we reverse the Board’s order denying nunc pro tunc
relief and remand for determinations on the merits of Claimant’s appeals.
I. Background
The Department received the initial claim for UC benefits in this case
on February 2, 2012. Certified Record (C.R.) Item 1 at 3, 15 & 25. The claim listed
the separating employers as Watermark Services I LLC (Watermark), with a first
day worked of July 14, 2010, and a last day worked of December 3, 2011, and
Simpson House (Employer), with a first day worked of October 1, 2011, and a last
day worked of December 31, 2011. Id. at 3, 15-16 & 25-26. On February 22, 2012,
the Department determined Claimant had an eligible discharge from Watermark. Id.
at 3, 17 & 27. The record shows that the Department paid UC benefits for the weeks
of February 11, 2012, through August 4, 2012. Id. at 7-10, 18-21 & 31-34. On
January 17, 2013, the Department sent Claimant a UC-1099 form reflecting
payments totaling $6,604.00 in 2012. Id. at 2.
On February 1, 2013, the Department received a change of address for
Claimant from the Philadelphia post office box address provided in the initial claim,
to a street address in Upper Darby. Id. at 2. Claimant submitted a W-4 form to
Employer dated April or May 1, 2013,2 likewise reflecting a change of address to
Upper Darby. C.R. Item 10, Transcript of Testimony, 4/12/19 (Tr.) at Ex. EE1.
In July 2017, more than five years after the initial filing of the UC claim,
the Department sent Employer a questionnaire concerning possible unreported
2
The numerals 4 (referring to April) and 5 (referring to May) both appear in the date on
the W-4 and are superimposed, making the month uncertain. See Certified Record (C.R.) Item 10,
Transcript of Testimony, 4/12/19 (Tr.) at Ex. EE1.
2
earnings by Claimant during her 2012 claim period. C.R. Item 2. Also in July 2017,
the Department sent Claimant a similar questionnaire by mail to her Upper Darby
address. C.R. Item 3. The questionnaire mailed to Claimant was not returned to the
Department as undeliverable. See C.R. Item 1 at 1 & 13. The record does not reflect
any reason for the Department’s delay of five years in investigating Claimant’s
possible earnings during the 2012 claim period.
In response to the questionnaire, Employer verified that it had
employed Claimant and that she had earned wages throughout the claim period. C.R.
Item 2 at 3-13, 18-19 & 22-23. Claimant did not respond to the questionnaire.
However, Claimant does not deny that she was in fact working for Employer and
earning wages throughout the 2012 claim period; indeed, she denied having filed a
UC claim, on the basis that she was employed. See Tr. at 16 (“I know that I didn’t
receive, I didn’t file for no [sic] unemployment because I didn’t need to, because I
was working at [Employer].”), 223 (“I didn’t need to take money and apply for
unemployment if I’m [sic] working . . . . ”).
After receiving Employer’s questionnaire response, the Department
mailed a series of notices of determination to Claimant in Upper Darby in July 2017,
finding she was ineligible for the benefits paid in 2012, imposing liability for fault
overpayments, and assessing penalties. C.R. Item 1 at 2. None of the notices was
returned to the Department as undeliverable. Id. at 1. Claimant did not appeal any
of the determinations within 15 days after they were mailed to her last known
3
Page 22 is missing from the hearing transcript in the certified record. However, Claimant
attached it to her brief and the Board has not objected. Accordingly, in the interests of justice, we
will treat it as part of the record on appeal. See Moyer v. PPL Elec. Utils. Corp. (Pa. Cmwlth., No.
587 C.D. 2019, filed Oct. 23, 2020), slip op. at 9 n.11, 2020 Pa. Commw. Unpub. LEXIS 514, at
*10 n.11 (unreported) (citing M.A. Bruder & Son, Inc. v. Workmen’s Comp. Appeal Bd. (Harvey),
485 A.2d 93, 95 n.2 (Pa. Cmwlth. 1984)). Moyer is cited as persuasive authority pursuant to this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
3
address, as required by Section 501(e) of the Unemployment Compensation Law
(UC Law).4 See Tr. at 9, 13 & 20; C.R. Item 11 at 1-2, 6-7 & 11-12.
From July 2017 to January 2019, the Department mailed a series of
billing statements to Claimant in Upper Darby concerning the fault overpayments.
C.R. Item 1 at 1-2. None of the billing statements was returned to the Department
as undeliverable. Id. at 1.
In January 2019, the Department filed a lien against Claimant regarding
the fault overpayments. Id. Claimant testified that she first learned of the
determinations and the lien when she received a telephone call from a collection
agent in February 2019 concerning the lien. Tr. at 11 & 14. She then contacted the
Department and provided her current address and telephone number. C.R. Item 1 at
1. At that time, she told the Department she had moved several times since 2013
and had not received any of the notices of determination. C.R. Item 1 at 1.
On March 5, 2019, Claimant again contacted the Department about the
overpayments and recoupment. C.R. at 1. She was told to file late appeals from the
determinations. Tr. at 11. On March 6, 2019, Claimant filed appeals from the
determinations. C.R. Item 1 at 1, Item 6.
The appeals were assigned to a Referee and were addressed in a single
hearing. C.R. Items 8-9; Tr. at 1. The hearing notices listed several “specific issues
to be considered” in the appeal, including both the timeliness and the merits of the
appeals: whether Claimant filed timely appeals; whether Claimant was unemployed
during the claim period; whether Claimant filed a valid application for UC benefits;
whether Claimant was entitled to partial benefits for the claim period; whether
Claimant received UC benefits for the claim period to which she was not entitled;
4
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e).
4
and whether Claimant knowingly made a false statement or failed to disclose a
material fact in order to obtain UC benefits, such that she was subject to a period of
disqualification from UC benefits or a monetary penalty. C.R. Item 9 at 1, 5, 9, 20,
28 & 36. Subsequently, at the hearing, the Referee also explained to the parties that
they should present evidence on the merits as well as on the timeliness issue, as there
would be only one hearing to address both the timeliness issue and the merits. Tr.
at 4-5. No party objected or asserted any prejudice related to addressing the merits
at the same hearing as the timeliness issue. See id.
Regarding timeliness, Claimant did not dispute that she was working
for Employer throughout the claim period of the 2012 UC claim. See Tr. at 16
(Claimant’s statement that she did not file for UC benefits in 2012 because she was
working for Employer), 22 (Claimant’s statement that she had no need for UC
benefits because she was working) & 23 (Employer’s witness testified Claimant was
working for Employer during 2012). However, she denied either applying for or
receiving any UC benefits in 2012. Tr. at 13-16, 19-22. She testified that she moved
multiple times after she relocated to Upper Darby, and as a result, she did not receive
any notices the Department mailed to Upper Darby starting in 2017. See Tr. at 17
(Claimant’s proof of address from April 2015 showed a different address) & 18
(Claimant resided at yet another address in 2014 and still another beginning in 2016).
She contended that, having filed no UC claim and collected no benefits in 2012, she
had no reason to provide the Department with subsequent changes to her address and
telephone number. See Tr. at 13-14.
On the merits, Claimant repeated her denial that she filed a UC claim
or collected benefits in 2012, although she stated she had no proof that she did not
receive deposits of UC benefits in her bank account in 2012. Tr. at 15 & 21-22. She
5
also denied knowledge of who might have opened a UC claim in her name. Tr. at
15.
Following the hearing, the Referee issued findings and conclusions and
determined that Claimant’s appeals were untimely. C.R. Item 11. Claimant
appealed to the Board, which adopted and incorporated the Referee’s findings and
conclusions and affirmed the Referee’s decision. C.R. Item 14. Acknowledging that
Claimant moved from Upper Darby by 2016, the Board nevertheless found
Claimant’s failure to receive the notices of determination mailed by the Department
in 2017 was due to her own negligence in failing to update the Department
concerning her changes of address. Id. at 1, 10 & 19. The Board noted Claimant’s
assertion that the 2012 UC claim resulted from identity theft, but nonetheless
implicitly imposed a duty on Claimant to inform the Department of her various
changes of address over the ensuing years. Id. Like the Referee, the Board credited
the testimony of Employer’s witness that he had informed Claimant when he
received questionnaires from the Department concerning her 2012 UC benefits in
July 2017, before the Department sent the notices of determination. Id. Finally, the
Board rejected Claimant’s argument that the Department’s delay of five years in
investigating the 2012 UC claim constituted an administrative breakdown entitling
her to nunc pro tunc relief. Id. Positing that the Department has no time limit to
issue notices of determination, the Board concluded that a delay alone did not
constitute an administrative breakdown. Id.
Claimant then petitioned for review in this Court.
6
II. Issues
On appeal,5 Claimant observes that the Department offered no
explanation for its delay of five years in investigating the 2012 UC claim. She
contends that such a lengthy unjustified delay constituted an administrative
breakdown justifying her appeal nunc pro tunc. Claimant also insists she was not
negligent in failing to update her address with the Department. She argues she did
not file the 2012 UC claim and therefore had no reason to anticipate that the
Department would be sending her time-sensitive documents relating to such a claim.
She also claims that, because the Department mailed the notices of determination to
an address where she no longer resided, she was improperly denied her right of
appeal.
III. Discussion
A. Delay in Issuing Notices of Determination
Section 501 of the UC Law provides, in pertinent part:
(a) The [D]epartment shall promptly examine each
application for benefits and on the basis of the facts found
by it shall determine whether or not the application is
valid. Notice shall be given by the [D]epartment in writing
to the [C]laimant and each base-year employer of the
[C]laimant. . . .
5
Claimant bore the burden of establishing the timeliness of her appeals from the notices of
determination. Wright v. Unemployment Comp. Bd. of Rev., 41 A.3d 58 & 62 n.5 (Pa. Cmwlth.
2011). Our standard of review concerning the Board’s decision and order on the timeliness of an
appeal from the Department’s notice of determination is limited to determining whether the Board
committed an error of law, whether constitutional rights were violated, or whether necessary
findings of fact were supported by substantial evidence. Bowman v. Unemployment Comp. Bd. of
Rev. (Pa. Cmwlth., No. 1589 C.D. 2009, filed Feb. 22, 2010), slip op. at 3 n.3, 2010 Pa. Commw.
Unpub. LEXIS 106, at *3 n.3 (unreported) (citing Hessour v. Unemployment Comp. Bd. of Rev.,
942 A.2d 194 (Pa. Cmwlth. 2008)).
7
(b) Notice shall be given in writing to the last employer[6]
of the [C]laimant stating that an application has been filed
by the designated employe.
43 P.S. § 821(a) & (b) (italics added).
Here, the record reflects that the Department conducted no examination
of the 2012 UC claim other than its 2012 verification of Claimant’s 2011 separation
of employment from Watermark and its 2017 questionnaire to Employer. See C.R.
Item 1 at 3, 15, 17 & 27; C.R. Items 2-3. Specifically, although the record reflects
that the Department sent a questionnaire in 2012 to Watermark, Claimant’s base-
year employer, there is no indication that Employer, Claimant’s last employer, was
provided with notice of her alleged claim for UC benefits as required by Section
501(b) of the UC Law. Thus, there is no indication in the record that the Department
attempted to verify Claimant’s alleged separation from Employer in 2012, or at any
other time prior to mid-2017. Further, the record contains no explanation by the
Department for its five-year delay in pursuing its examination of the claim.
Nunc pro tunc relief allowing a UC claimant’s untimely appeal may be
permitted where the delay in filing the appeal is the result of extraordinary
circumstances involving fraud, administrative breakdown, or non-negligent conduct
of the claimant or a third party. Mountain Home Beagle Media v. Unemployment
Comp. Bd. of Rev., 955 A.2d 484 (Pa. Cmwlth. 2008); see also Rude v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 184 C.D. 2010, filed Sept. 20,
2010), slip op. at 3-4, 2010 Pa. Commw. Unpub. LEXIS 640, at *5 (unreported)
(citing Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130 (Pa. 1996) and
Mountain Home Beagle Media). Negligence by an administrative official may be
equivalent to fraud for purposes of justifying nunc pro tunc relief. Rude, slip op. at
6
Here, Watermark was the base-year employer and Employer was the last employer.
8
4 (citing Stana v. Unemployment Comp. Bd. of Rev., 791 A.2d 1269 (Pa. Cmwlth.
2002)).
Here, Claimant contends the Department was negligent by reason of its
five-year delay in issuing the notices of determination. As a result, because Claimant
had moved multiple times in the interim, the Department did not provide the
requisite notices of its determinations, having mailed them to the wrong address.
We agree.
The Board argues that the Department was not negligent because there
is no specific time limit under the UC Law for the Department to issue a
determination concerning a claim for UC benefits. This Court rejected the same
argument in Ruffner v. Unemployment Compensation Board of Review (Pa. Cmwlth.,
No. 1566 C.D. 2016, filed June 22, 2017), 2017 Pa. Commw. Unpub. LEXIS 452(unreported). Based on the Department’s duty of prompt examination, we concluded
in Ruffner that the absence of a specific time limit for claim determinations in the
UC Law does not mean the Department “has forever to evaluate a claim.” Id., slip
op. at 6-7, 2017 Pa. Commw. Unpub. LEXIS 452, at *9 (distinguishing Grimm v.
Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 2265 C.D. 2014, filed Oct. 28,
2015), 2015 Pa. Commw. Unpub LEXIS 781 (unreported) (claimant waived five-
month delay in reversing a decision to award UC benefits, and moreover, the
Department was conducting its investigation during the five-month period)). We
concluded that the unexplained delay of 19 months in Ruffner between the claimant’s
application for UC benefits and the Department’s determination of ineligibility and
fault overpayment failed to comply with the Department’s obligation of prompt
examination of the UC claim pursuant to Section 501 of the UC Law, thus
9
necessitating a remand to address the claimant’s assertion of prejudice arising from
the delay. Ruffner, slip op. at 7-9, 2017 Pa. Commw. Unpub. LEXIS 452, at *9-11.
We find our reasoning in Ruffner persuasive here. Because Employer
was listed as a separating employer along with Watermark in the initial UC claim
information, the Department was or should have been aware of the need to examine
the claim in relation to Claimant’s purported separation from Employer as well as
Watermark. However, the record does not reflect any notice to Employer concerning
the UC claim in 2012 as required by Section 501(b) of the UC Law. We conclude
that the Department’s delay of five years before investigating the 2012 status of
Claimant’s employment with Employer did not constitute a prompt examination of
the claim as required by Section 501(c) of the UC Law, 43 P.S. § 821(c). In addition,
in light of Claimant’s denial that she ever filed the 2012 UC claim or received UC
benefits under that claim, we agree with Claimant that the Department’s unexplained
five-year delay in investigating that claim justifies nunc pro tunc relief allowing
consideration of the merits of Claimant’s appeals, including Claimant’s assertion of
prejudice arising from the Department’s delay.7
B. Delay in Receiving Notices of Determination
The Board also posits that Claimant’s failure to receive until 2019 the
notices of determination that were issued in 2017 was her own fault because she
failed to keep the Department up to date on her various changes of address. The
Board is correct that, in general, mailing a notice of determination to a claimant’s
last known address gives rise to a presumption of receipt if the notice is not returned
as undeliverable. See Gaskins v. Unemployment Comp. Bd. of Rev., 429 A.2d 138,
7
To the extent Claimant’s assertion of prejudice relates to her failure to receive the 2017
notices of determination so as to file timely appeals, that prejudice is cured by our decision
reversing the Board’s denial of nunc pro tunc relief.
10
140 (Pa. Cmwlth. 1981). The burden is then upon the claimant to show failure to
receive the notice as a result of wrongful or negligent conduct by administrative
authorities. Id. (evidence that notice was mailed to claimant’s last known address
and not returned as undeliverable shifts the burden of proof to claimant to prove lack
of notice; Board need not accept even unrebutted evidence from claimant).
Here, however, the evidence demonstrated that the Department sent the
notices of determination to an address that was no longer current. As discussed
above, the Department did not act with requisite promptness when it failed to
investigate the UC claim until five years after the benefits ended. We discern no
basis to impose a duty upon Claimant to continue updating her address for five years
after the end of the UC claim. Therefore, the Board erred in applying the
presumption of receipt in these circumstances.8
Decisions of this Court that may appear to be to the contrary are
distinguishable. In Reviello v. Unemployment Compensation Board of Review (Pa.
Cmwlth., No. 1317 C.D. 2008, filed July 20, 2009), 2009 Pa. Commw. Unpub.
LEXIS 127 (unreported), the claimant moved because of a divorce in 2000 and failed
to notify the Department, although he filed a forwarding address with postal
authorities. He allegedly did not receive a notice of determination regarding an
overpayment, which the Department mailed to his previous address in April of 2001.
However, the claimant contacted the local UC Service Center in October 2001 and
8
Applying the presumption of receipt would be particularly unfair here, where Claimant
has consistently averred that she never filed the 2012 claim, never collected UC benefits in 2012,
and never provided the Ashton Road address to the Department. If credited by the Board, those
averments would eliminate any duty to provide the Department with her current address each time
she moved, as Claimant would have had no pending claim before the Department and no reason
to anticipate that the Department might need to contact her. In any event, we decline to hold that
a UC claimant must keep the Department informed of address changes several years after her claim
period has ended.
11
again in September 2003 about appealing the determination, thus demonstrating his
receipt of the notice of determination. On neither occasion did the claimant update
his address with the Department. He did not provide his new address until 2006,
and ultimately did not file an appeal until 2008. This Court affirmed the Board’s
conclusion that the appeal was untimely, observing that mere averment of nonreceipt
is insufficient to rebut the presumption of delivery. Id., slip op. at 5-6, 2009 Pa.
Commw. Unpub. LEXIS 127, at *6-7.
Here, however, Claimant offered more than a mere averment that she
did not receive the notices of determination. She presented evidence of her several
moves, along with her testimony that she did not initiate the 2012 UC claim or
receive any UC benefits as a result of that claim. Thus, Claimant provided facts that,
if credited by the Board, would negate any duty to provide the Department with
address updates. Moreover, Claimant offered evidence that she acted promptly upon
learning of the lien imposed by the Department, unlike the claimant in Reviello, who
waited seven years after learning of the Department’s determination of an
overpayment before seeking to appeal that determination.
Duhigg v. Unemployment Compensation Board of Review (Pa.
Cmwlth., No. 412 C.D. 2017, filed Dec. 13, 2017), 2017 Pa. Commw. LEXIS 1101(unreported), is also inapplicable. In Duhigg, the claimant moved several months
after the end of her claim year and did not provide the Department with her new
address. As a result, she did not receive notices of determination of fault
overpayments sent several years later to her old address. Rejecting her assertion of
administrative breakdown to defend her untimely appeal, this Court found that
regardless of when she moved, the claimant was responsible to notify the
12
Department of her change of address. Id., slip op. at 6, 2017 Pa. Commw. LEXIS
1101, at *6-7.
Critically, however, the claimant in Duhigg, like the Reviello claimant,
admitted filing a UC claim and failing to promptly provide the Department with her
new address when she moved. Id., slip op. at 2, 2017 Pa. Commw. LEXIS 1101, at
*1-2. Moreover, although she did not receive the notices of determination, she did
receive a letter several months later at her new address concerning a fault
overpayment, and she still did not appeal the determinations until 41 days after
receiving that letter. Id., slip op. at 2-3, 2017 Pa. Commw. LEXIS 1101, at *2-3.
We therefore find Duhigg distinguishable from this matter, where Claimant (1)
consistently testified that she never filed the 2012 UC claim or received UC benefits
under that claim, and (2) filed her appeals within 15 days of learning of the
determinations of fault overpayments. If the Board credits Claimant’s testimony on
remand,9 Claimant will have had no duty to provide the Department with her new
address each time she moved.
In Ferraro v. Unemployment Compensation Board of Review, 464 A.2d
697 (Pa. Cmwlth. 1983), the claimant initially received UC benefits, but a
subsequent investigation revealed she had been a full-time student and was also
employed during the period for which the benefits were paid. The claimant appeared
and testified at a hearing concerning that issue. Several months later, a notice
scheduling an interview was mailed to the claimant, but she failed to attend the
interview. She was determined ineligible for benefits and subject to a fault
recoupment. She failed to file a timely appeal, later contending she did not receive
9
Neither the Referee nor the Board made any findings concerning the merits, including
Claimant’s assertion that she never filed the 2012 UC claim or received UC benefits from that
claim.
13
the notice of determination concerning the fault recoupment because she had moved.
This Court found the delay in the claimant’s receipt of the notice of determination
was the result of her own delay in notifying the Department or postal authorities of
her change of address. Id. at 699.
Ferraro is inapplicable here. The claimant in that case indisputably
applied for and received UC benefits. Further, she moved during a period when she
was aware that an investigation was underway concerning her eligibility for those
payments. Neither circumstance is present here.
In short, under the facts of this case, we conclude that no presumption
of receipt applies to the notices of determination the Department mailed to Claimant
at an incorrect address in 2017.
IV. Conclusion
Based on the foregoing discussion, we reverse the Board’s orders
denying nunc pro tunc relief. We remand this matter to the Board for determinations
on the merits of Claimant’s appeals.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ruth Byrd, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : Nos. 1231, 1232, and 1233 C.D. 2019
Respondent :
ORDER
AND NOW, this 4th day of February, 2021, the orders of the
Unemployment Compensation Board of Review denying nunc pro tunc relief are
REVERSED. This matter is remanded to the Board for determinations on the merits
of Ruth Byrd’s appeals.
Jurisdiction is relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ruth Byrd, :
Petitioner :
:
v. : Nos. 1231, 1232 and 1233 C.D. 2019
: Argued: November 10, 2020
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 4, 2021
I agree with the majority’s conclusion that Ruth Byrd (Claimant) is
entitled to nunc pro tunc relief because the Department of Labor and Industry’s
(Department) unjustified five-year delay in investigating unemployment
compensation claims constituted an administrative breakdown. I write separately,
however, to stress that the Unemployment Compensation Law1 imposes no duty on
Claimant to update her address with the Department years after her claim period has
ended.
The Unemployment Compensation Board of Review (Board) posits
that Claimant was at fault for not receiving the notices of determinations issued in
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§751-
919.10, 919.101-919.105.
2017 because she did not inform the Department each time she moved after her claim
ended in 2012.2 The Board relies on Section 501(e) of the Unemployment
Compensation Law, which states:
(e) Unless the claimant or last employer or base-year employer
of the claimant files an appeal with the board, from the
determination contained in any notice required to be furnished
by the department under section five hundred and one (a), (c) and
(d), within fifteen calendar days after such notice was delivered
to him personally, or was mailed to his last known post office
address, and applies for a hearing, such determination of the
department, with respect to the particular facts set forth in such
notice, shall be final and compensation shall be paid or denied in
accordance therewith.
43 P.S. §821(e) (emphasis added).
A fair reading of Section 501(e) suggests that a claimant who has an
open claim for unemployment benefits may not raise non-receipt of a determination
as an excuse for filing an untimely appeal if she failed to notify the Department of
her new address. However, it is a bridge too far to read the term “last known post
office address” to signify a mandate that any person who ever interacted with the
unemployment compensation system must keep the Department informed of every
address change after benefits have ceased, by virtue of the claimant’s return to the
workplace, or have been exhausted.
It is evident when looking at other statutes that the legislature knows
how to impose a duty to report address changes when it wishes. Subchapter I of the
Sexual Offender Registration and Notification Act,3 for example, requires sex
2
Of course, Claimant asserts she did not submit the 2012 claim that prompted the Unemployment
Compensation Service Center’s actions.
3
42 Pa. C.S. §§9799.10-9799.75.
MHL-2
offenders, upon their release from incarceration, to provide the Pennsylvania State
Police with information about their current or intended residences, employment, and
enrollment as a student. 42 Pa. C.S. §9799.56(a)(1)(iii). In addition, offenders must
notify the State Police “within three business days of” any changes in residence,
employment or employment location, or enrollment status in an educational
institution. 42 Pa. C.S. §9799.56(a)(2). Likewise, Section 1515(a) of the Vehicle
Code provides that “[w]henever any person after applying for or receiving a driver’s
license moves from the address named in the application or in the drivers’ license
issued …, such person shall, within 15 days thereafter, notify the [Department of
Transportation] of the old and new addresses[.]” 75 Pa. C.S. §1515(a).
By contrast, the Unemployment Compensation Law imposes no such
duty on an individual who once applied for unemployment benefits. When there is
no duty, there can be no negligence. See Salvatore v. State Farm Mutual Automobile
Insurance Company, 869 A.2d 511, 514 (Pa. Super. 2005). For this reason alone,
the Board erred in holding that Claimant was in any way negligent for not updating
her address with the Department five years (or more) after she ceased to collect
unemployment benefits.
_____________________________________
MARY HANNAH LEAVITT, President Judge
MHL-3