S.M. Cottman v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shauna M. Cottman, :
Petitioner :
:
v. : No. 1716 C.D. 2019
: SUBMITTED: November 9, 2020
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P)
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: December 4, 2020
Shauna M. Cottman (Claimant) petitions for review of the October 23, 2019
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to dismiss Claimant’s appeal under Section 501(e) of the
Unemployment Compensation Law (Law).1 The Board concluded that Claimant’s
appeal was untimely and she did not establish that her late appeal was caused by
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
821(e). Section 501(e) of the Law states:
Unless the claimant or last employer or base-year employer of the claimant files an
appeal with the [B]oard, from the determination contained in any notice required to
be furnished by the [D]epartment [of Labor and Industry (Department)] under [this
section of the Law], 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 [D]epartment, 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).
fraud or an administrative breakdown. We agree and, therefore, affirm the Board’s
Order.
Background
On June 23, 2019, Claimant filed an application for unemployment
compensation (UC) benefits following her separation from employment as a
corrections officer with GEO Corrections and Detention (Employer). Pet. for
Review, 11/25/19, ¶¶ 1, 6.
On July 19, 2019, the Scranton UC Service Center mailed a Notice of
Determination to Claimant’s last known mailing address, finding Claimant ineligible
for UC benefits under Section 402(b) of the Law, 43 P.S. § 802(b).2 Bd.’s Finding
of Fact (F.F.) No. 1. Claimant received the Notice of Determination on July 23,
2019. Id. No. 2. The Notice of Determination contained appeal instructions, which
specified that the last day to file a timely appeal was August 5, 2019. Id. No. 3;
Record (R.) Item No. 4. Claimant did not file an appeal by August 5, 2019; however,
Claimant filed an appeal via email on August 7, 2019. Bd.’s F.F. No. 4.
The Referee held an evidentiary hearing on September 4, 2019, at which
Claimant appeared pro se. Employer did not attend the hearing.3
Claimant testified that she attempted to file her appeal from the Notice of
Determination online, “but it didn’t go through.” Notes of Testimony (N.T.), 9/4/19,
at 4. She explained:
2
Section 402(b) of the Law provides that a claimant is ineligible for UC benefits for any
week “[i]n which his [or her] unemployment is due to voluntarily leaving work without cause of a
necessary and compelling nature.” 43 P.S. § 802(b).
3
In her decision, the Referee stated: “Although duly notified of the date, time and place
of the [UC] hearing, [E]mployer failed to appear for the hearing to present testimony and evidence
on the issues under appeal.” Ref.’s Order, 9/5/19, at 2.
2
[W]hen I tried to send [the appeal] through, it had[] . . . these little dots
on and around it. So[] I wasn’t sure if it went through or not. Then I
called the 1-800 number to see, had they received it? And they told me,
no, that they didn’t receive it and that my case was up in Scranton. So[]
that’s how I ended up getting the e[]mail address from the . . . 1-800
number.
Id. The Referee then stated that the UC claim records entered into evidence indicated
that Claimant spoke with a Department representative by phone on August 2, 2019.
Id. at 5. Claimant agreed that she spoke with a representative on August 2, 2019.
Id. Claimant then reiterated that when she called the Department, “they said they
ha[d]n’t received anything, so they gave me the e[]mail . . . address” and “I e[]mailed
[the appeal].” Id.
Following the hearing, the Referee dismissed Claimant’s appeal as untimely.
The Referee reasoned as follows:
[T]he competent evidence in the hearing record establishes that
[C]laimant filed an appeal on August 7, 2019, [from] the Notice of
Determination issued by the Scranton UC Service Center on July 19,
2019. Here, [C]laimant carries a heavy burden to justify an untimely
appeal. The Referee finds that [C]laimant did not present credible
evidence[4] to establish that she filed an appeal by email on or before
the appeal expiry period. Furthermore, [C]laimant takes the risk of
delay, disruption, or interruption when filing an appeal electronically.
As the provisions of Section 501(e) [of the Law] are mandatory, and
the Referee has no jurisdiction to allow an appeal filed after the
expiration of the statutory appeal period, [C]laimant’s appeal is
dismissed.
Ref.’s Order, 9/5/19, at 2; see Bd.’s Order, 10/23/19, at 1.
4
The Board modified this sentence of the Referee’s decision, changing “competent
evidence” to “credible evidence” because “technically the best evidence rule does not apply to
[UC] hearings.” Bd.’s Order, 10/23/19, at 1.
3
Claimant appealed to the Board, which adopted the Referee’s findings of fact
and conclusions of law, with one modification. See supra note 4. The Board further
concluded:
[C]laimant . . . fail[ed] to adequately explain why she still did not
submit an appeal before the August 5, 2019 deadline, after she was
informed by telephone on August 2, 2019 that her appeal was not
received, instructed to fax an appeal request, and provided an email
address at her request.
Bd.’s Order, 10/23/19, at 1. Therefore, the Board affirmed the dismissal of
Claimant’s appeal as untimely. Claimant now petitions this Court for review.5
Analysis
On appeal, Claimant asserts that the Board erred in dismissing her appeal
because her failure to comply with the 15-day statutory deadline was due to an
administrative breakdown. She claims that she filed her appeal online several days
before the deadline, but “the [Department’s] website malfunctioned.” Claimant’s
Br. at 7 (capitalization omitted). Claimant contends that this Court should permit
her to appeal nunc pro tunc because she filed her appeal by email only two days after
the deadline. Id. at 7, 10.
Section 501(e) of the Law requires a claimant to file an appeal from a
Department determination within 15 days of the date of mailing to the claimant’s
last known postal address. 43 P.S. § 821(e). Our Court has held that the “15-day
time limit is mandatory and subject to strict application.” Vereb v. Unemployment
Comp. Bd. of Rev., 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en banc). If the
5
Where the party with the burden of proof was the only party to present evidence and did
not prevail below, our scope of review is limited to determining whether the Board capriciously
disregarded competent evidence and whether there was a constitutional violation or an error of
law. Constantini v. Unemployment Comp. Bd. of Rev., 173 A.3d 838, 842 n.4 (Pa. Cmwlth. 2017).
4
claimant does not file an appeal within 15 days, “the determination becomes final,
and the [Department] does not have the requisite jurisdiction to consider the matter.”
Id. (emphasis added). Even an appeal filed only one day after the expiration of the
15-day time period must be dismissed as untimely. Shea v. Unemployment Comp.
Bd. of Rev., 898 A.2d 31, 33 (Pa. Cmwlth. 2006).
A claimant has “a heavy burden to justify” the filing of an untimely appeal.
Constantini, 173 A.3d at 844. “Generally, an appeal nunc pro tunc may be allowed
when a delay in filing the appeal is caused by extraordinary circumstances involving
‘fraud or some breakdown in the court’s operation through a default of its officers.’”
Cook v. Unemployment Comp. Bd. of Rev., 671 A.2d 1130, 1131 (Pa. 1996) (citation
omitted). To satisfy her burden of proof, the claimant must establish that the
Department “engaged in fraudulent behavior or manifestly wrongful or negligent
conduct” or that “non-negligent conduct beyond [the claimant’s] control caused the
delay.” Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 198 (Pa.
Cmwlth. 2008).
Moreover, with regard to appeals filed electronically, the Board’s regulations
expressly provide:
(4) Electronic transmission other than fax transmission. The date of
filing is the receipt date recorded by the Department appeal office or
the Board’s electronic transmission system, if the electronic record is
in a form capable of being processed by that system. A party filing by
electronic transmission shall comply with Department instructions
concerning format. A party filing an appeal by electronic transmission
is responsible for using the proper format and for delay, disruption,
interruption of electronic signals and readability of the document and
accepts the risk that the appeal may not be properly or timely filed.
34 Pa. Code § 101.82(b)(4) (emphasis added).
5
Here, the record establishes that on August 2, 2019, three days before the
appeal deadline, a Department representative informed Claimant that the
Department had not received her appeal and advised Claimant that she should submit
her appeal to the Department by fax or email. N.T., 9/4/19, at 5; Bd.’s F.F. No. 4.
However, Claimant did not file her appeal by email until August 7, 2019, two days
after the deadline. Bd.’s F.F. No. 4; see Claimant’s Br. at 5-6. There is no indication
in the record as to why Claimant did not file her appeal before the August 5, 2019
deadline after learning that her first appeal attempt was unsuccessful, nor does she
offer any explanation for this delay in her brief.6 Claimant offered no evidence
establishing that her untimely appeal was caused by fraudulent or negligent conduct
by the Department or non-negligent conduct beyond Claimant’s control. See
Hessou, 942 A.2d at 198. Therefore, we conclude that Claimant failed to meet her
burden of proving that her late appeal was caused by fraud or an administrative
breakdown.
Conclusion
Accordingly, because we conclude that Claimant’s appeal was untimely and
she did not establish a right to nunc pro tunc relief, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
6
In her Petition for Review, Claimant also avers that, at the hearing, she “attempted to
show her aborted online appeal to the Referee through her cell phone, but the Referee refused to
review [Claimant’s] evidence.” Pet. for Review, 11/25/19, ¶ 12; see Claimant’s Br. at 6-7.
Claimant, however, failed to raise this issue in her appeal to the Board. See R. Item No. 9.
Therefore, to the extent Claimant is attempting to challenge this evidentiary issue on appeal, we
conclude that she has waived the issue. See Merida v. Unemployment Comp. Bd. of Rev., 543 A.2d
593, 595-96 (Pa. Cmwlth. 1988) (stating that any issues not specifically raised in appeal to the
Board are waived).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shauna M. Cottman, :
Petitioner :
:
v. : No. 1716 C.D. 2019
:
Unemployment Compensation Board :
of Review, :
Respondent :
ORDER
AND NOW, this 4th day of December, 2020, the Order of the Unemployment
Compensation Board of Review, dated October 23, 2019, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge