M. Garcia v. UCBR ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcos Garcia, :
Petitioner :
:
v. : No. 954 C.D. 2020
: SUBMITTED: April 23, 2021
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: June 11, 2021
Marcos Garcia (Claimant) petitions for review, pro se, of the August 27, 2020
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee to dismiss Claimant’s appeal as untimely under Section 501(e)
of the Unemployment Compensation Law (Law).1 We affirm.
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 provides:
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 . . . within [15] 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).
Background
Following his separation from employment with R.H. Sheppard Inc.,
Claimant filed an application for unemployment compensation (UC) benefits on
December 5, 2019. Bd.’s Finding of Fact (F.F.) No. 1; Record (R.) Item No. 1.2
Claimant was required to register for employment search services by January 4,
2020. Bd.’s F.F. No. 2.
On December 26, 2019, the Department of Labor and Industry (Department)
notified Claimant by letter that he had not yet registered for employment search
services and that failure to register by January 4, 2020 would result in his
disqualification for UC benefits beginning with the week ending January 11, 2020,
and for subsequent weeks until he registered. Id. No. 3; R. Item No. 2. The
December 26, 2019 letter stated in pertinent part:
If you do not complete your registration [for employment search
services] by 01/04/2020 you will be disqualified [from] receiv[ing]
[UC] benefits beginning with the week ending 01/11/2020.
....
. . . [T]he [D]epartment recommends that you register even if you
are currently exempt. If your exemption ends and you become
unemployed in the future, you will be ineligible until you register.
The [D]epartment also encourages you to register even if you are
not filing claims for benefits at this time. If you reopen your UC
claim in the future, you will be ineligible for benefits unless you
have an exemption at that time.
R. Item No. 2 (bold in original). Claimant did not register for employment search
services by January 4, 2020. Bd.’s F.F. No. 4.
2
The record does not indicate the nature of Claimant’s position with R.H. Sheppard Inc.
or the reason for his initial separation from employment.
2
On January 13, 2020, the Department issued a Notice of Determination
(Notice) to Claimant, denying his claim for UC benefits. Id. No. 5; R. Item No. 3.
The Department determined that Claimant was disqualified from receiving UC
benefits beginning with the week ending January 11, 2020, and continuing until he
registers for employment search services as required by Section 401(b)(1)(i) of the
Law, 43 P.S. § 801(b)(1)(i), and the Department’s regulation at 34 Pa. Code §
65.11(c).3 Bd.’s F.F. No. 5. The Notice stated: “This disqualification will continue
to apply until you register [for employment search services].” R. Item No. 3. The
3
Section 401(b)(1)(i) of the Law states in relevant part:
Compensation shall be payable to any employe who is or becomes unemployed,
and who—
....
(b)(1) Is making an active search for suitable employment. The requirements for
“active search” shall be established by the [D]epartment and shall include, at a
minimum, all of the following:
(i) Registration by a claimant for employment search services offered by the
Pennsylvania CareerLink system or its successor agency within thirty (30)
days after initial application for benefits.
43 P.S. § 801(b)(1)(i) (emphasis added). The regulation at 34 Pa. Code § 65.11(c) (emphasis
added) provides:
A claimant shall register for employment search services in the Pennsylvania
CareerLink® system within 30 days after the claimant files his application for
benefits. See [S]ection 401(b)(1)(i) of the [L]aw. If a claimant does not register
for employment search services in the Pennsylvania CareerLink® system within 30
days after the claimant files his application for benefits, the claimant will be
ineligible for compensation for any week that ends more than 30 days after the
claimant files his application for benefits unless the claimant registers by Sunday
of that week.
3
Notice also informed Claimant that he had until January 28, 2020 to file a timely
appeal to the Referee. Id.; Bd.’s F.F. No. 6.
Although Claimant received the Notice, he did not file an appeal by January
28, 2020 because he misread the Notice and did not realize the ongoing nature of his
disqualification. Bd.’s F.F. Nos. 6, 7. Claimant appealed to the Referee on April
29, 2020. Id. No. 8. At the time he filed his appeal, Claimant still had not registered
for employment search services. See R. Item Nos. 5, 6; Bd.’s Order, 8/27/20, at 2.4
The Referee held a telephone hearing on May 29, 2020. Claimant appeared
pro se and testified on his own behalf. Claimant’s separating employer, R.H.
Sheppard Inc., did not participate in the hearing. Claimant’s sister-in-law, Deborah
Rodriguez, was also present at the hearing but did not offer any testimony. See N.T.,
5/29/20, at 1, 4.
At the outset of the hearing, the Referee summarized the matters before him
as follows:
The issue involved in today’s hearing in each of [Claimant’s a]ppeals
is Section 501(e) [of the Law], whether . . . Claimant[] filed . . . timely
and valid appeal[s] from the [Department’s Notices of Determination].
Also, [at issue] in Appeal [Number] 2626 is Section 401(d) [of the
Law], whether . . . Claimant is able and available for suitable work, and
[at issue] in Appeal [Number] 2627 is Section 401(b)[(1)(i) of the Law],
whether . . . Claimant registered for the Pennsylvania JobGateway in
accordance with the [Department’s] regulations.
4
The record shows that Claimant returned to work for R.H. Sheppard Inc. shortly after his
initial layoff. See R. Item No. 1; Notes of Testimony (N.T.), 5/29/20, at 7. However, Claimant
was subsequently laid off again in March 2020 due to the COVID-19 pandemic. N.T., 5/29/20, at
9; Pet. for Rev. at 1. Following that layoff, Claimant re-submitted his claim for UC benefits in
April 2020. R. Item No. 1.
4
N.T., 5/29/20, at 5.5
With regard to Appeal Number 2627, Claimant testified as follows:
[Referee:] . . . [W]hen you filed that application [for UC benefits] were
you living at [the] 411 Ridge Avenue, Mc[S]herrystown, PA 17344
address?
[Claimant:] Yeah, I did, but at the same time I was – I had moved, and
my mailing address was the wrong address. . . . But when I g[o]t those
papers back, it was too late to appeal. And I didn’t care about if I
follow[ed] whatever [the Notice said] because I was only off [for] two
days. . . . I went back to work.
Id. at 7 (emphasis added); see also R. Item No. 4. (in his appeal to the Referee,
Claimant averred, “I went back to work right away so I didn’t care about lo[]sing 2
days back in November [2019]”).
When asked if he had ever changed his mailing address with the Department,
Claimant replied, “I did change my mailing address, but they’ve been so confused
because they had the address, my sister’s, when she moved out, she moved
everybody out of this house in McSherrystown.” N.T., 5/29/20, at 7. He further
testified that “all the mail[] was going to her house, and then she didn’t give me the
mail[].” Id. (emphasis added).
Claimant testified that he “wasn’t expecting to be [laid] off” in March 2020
“because of the coronavirus” and that he filed his appeal on April 29, 2020
“[b]ecause [his] work stopped.” Id. at 8. When the Referee asked Claimant if he
was aware that he was required to register for employment search services, Claimant
responded:
5
The record before this Court does not include any agency documentation or orders
relating to Appeal Number 2626. The only matter before this Court is Appeal Number 2627,
relating to Claimant’s ineligibility for UC benefits under Section 401(b)(1)(i) of the Law.
5
No. I tried to contact [the Department] because I [didn’t] want to send
my information to the wrong website, and I tried so hard to contact [the
Department] to make sure my information [didn’t] go to the wrong
place. And there were no answers . . . . It’s only two days. I was just
like, okay, skip two days. . . .
Id. (emphasis added).6 Claimant further testified, “I didn’t expect the coronavirus
[to] affect me at that point. And I know for sure when [my employer] laid me off
again on March 25[, 2020], . . . they request[ed] me to . . . register for the . . .
CareerLink [website].” Id. at 9.
Following the hearing, the Referee dismissed Claimant’s appeal as untimely
under Section 501(e) of the Law. The Referee found, based on the evidence of
record and Claimant’s testimony at the hearing, that the Notice was properly mailed
to Claimant’s last known post office address and was not returned by the postal
authorities as undeliverable. Ref.’s F.F. Nos. 2, 3. The Referee also found that
Claimant was neither misinformed nor misled regarding his right to appeal or his
need to file a timely appeal. Id. No. 7. Because Claimant filed his appeal four
months after the appeal deadline without justification, the Referee concluded that he
lacked jurisdiction to consider the merits of the appeal. Ref.’s Order, 6/1/20, at 2.
Claimant appealed to the Board, which affirmed the Referee’s decision. After
making its own findings of fact based on the record evidence, the Board concluded
as follows:
Here, the final day to file an appeal from the Department’s [Notice] was
January 28, 2020. However, [C]laimant failed to file an appeal until
April 29, 2020.
6
Claimant testified that he was registered for employment search services at the time of
the Referee’s hearing. N.T., 5/29/20, at 8. However, the Board found that he was still not
registered as of the date of its decision. Bd.’s Order, 8/27/20, at 2.
6
Section 501(e) of the Law strips the Board and its referees of
jurisdiction to accept an appeal filed after the statutory appeal period
expires unless caused by fraud or its equivalent by the administrative
authorities, a breakdown in the administrative process, or non-negligent
conduct.
[C]laimant did not appeal by January 28, 2020, because he misread
the [Notice] and did not realize the ongoing nature of the
disqualification. [C]laimant’s misunderstanding was the result of his
negligence, not administrative breakdown, so his late appeal is
unjustified. Therefore, the Board lacks jurisdiction to consider whether
the Department erred by denying [UC] benefits beginning with the
week ending January 11, 2020.
However, a denial of [UC] benefits under Section 401(b)(1)(i) of the
Law and [34 Pa. Code § 65.11(c)] is not permanent. [A claimant’s
f]ailure to register for employment search services will result in
ineligibility for benefits for each week that ends more than [30] days
after the claimant applied for benefits, unless the claimant registers by
the Sunday of that week.
[C]laimant appears to have not yet registered for employment
search service[s], so his ineligibility continues and the Board
encourages him to register even if he is currently working or
exempt from registration so he may promptly receive benefits when
next unemployed.
Bd.’s Order, 8/27/20, at 2 (first emphasis added; second emphasis in original).
Claimant now petitions for review of that decision.7
Analysis
On appeal, Claimant argues that he is entitled to UC benefits for the two-week
period that he was laid off in 2020 due to the COVID-19 pandemic. Pet. for Rev. at
7
Where, as here, 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).
7
1; Claimant’s Br. at 9; see also R. Item No. 12 (“I am claim[ing] my [UC] benefit[s]
because I [did] not work [two] week[s] and three days for the C[OVID-]19.”).
Claimant asserts that the Board erred in finding that he “did not have the right [to]
ask[] for the two weeks of pay since [he] did not do it in a timely manner.”
Claimant’s Br. at 8. Claimant contends that he filed his appeal late because he “was
relying on what [the] Human Resources team at work [was] telling [him] to just keep
calling [the Department] until [he] got a hold of someone” and “[w]hen [he] finally
got a hold of someone[,] they told [him] it was late and [he] had to appeal.” Id. at
9.8
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
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.Moreover, 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 his burden of proof, the claimant must establish
that the Department “engaged in fraudulent behavior or manifestly wrongful or
8
This assertion contradicts Claimant’s testimony at the hearing that when he tried calling
the Department after receiving the Notice, “there were no answers.” N.T., 5/29/20, at 8.
8
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). An administrative breakdown by the Department will justify a
late appeal only if the breakdown “relate[s] to the availability, timing[,] or need for
an appeal.” Greene v. Unemployment Comp. Bd. of Rev., 157 A.3d 983, 993 (Pa.
Cmwlth. 2017).
In essence, Claimant contends that his appeal was late due to an administrative
breakdown or non-negligent conduct beyond his control. Claimant maintains that
after he received the Notice, he tried calling the Department multiple times but no
one answered the phone and when he finally reached the Department, it was too late
to appeal. Claimant’s Br. at 7, 9. Claimant admitted, however, that he intentionally
took no further action with regard to the Notice because he had already returned to
work. Specifically, Claimant testified that he “didn’t care about if [he] follow[ed]
whatever [the Notice said] because [he] was only off [for] two days” before he “went
back to work.” N.T., 5/29/20, at 7; see also R. Item No. 4 (“I went back to work
right away so I didn’t care about lo[]sing 2 days back in November [2019].”). We
conclude, based on the evidence of record, that Claimant’s subsequent return to work
did not justify his late appeal.
We rejected this same claim in Boesch v. Unemployment Compensation Board
of Review (Pa. Cmwlth., No. 612 C.D. 2016, filed November 3, 2016), which also
involved an untimely appeal from a Department determination.9 In Boesch, the
Department issued a determination that the claimant was ineligible for UC benefits
9
We may cite an unreported decision of this Court as persuasive authority. See Cmwlth.
Ct. Internal Operating Procedure Section 414(a), 210 Pa. Code § 69.414(a) (stating that an
unreported panel decision of this Court, issued after January 15, 2008, may be cited for its
persuasive value).
9
because he failed to register for employment search services under Section
401(b)(1)(i) of the Law. Boesch, slip op. at 1-2. The claimant did not appeal from
the determination until seven months later, claiming that he did not receive the
determination until after the appeal deadline had passed. Id. at 2. At the hearing,
the claimant testified that when he received the notice, he did not take any action
“[b]ecause [he] was already back to work” so “[he] wasn’t worried about
[u]nemployment or any of that.” Id. at 6-7 (quoting notes of testimony). Our Court
rejected this excuse for the claimant’s late appeal, stating:
[The c]laimant testified he was back to work when the determination
was issued. This testimony seems to contradict [the c]laimant’s
assertion he was unaware of the determination. Nevertheless, the
determination clearly stated: “This disqualification will continue to
apply until you register.” Therefore, even though [the c]laimant may
have returned to work, he was on notice that should he become
unemployed again during the same benefit year, he was obligated to
complete the registration process in order to obtain benefits. [The
c]laimant’s failure to recognize the full implication that the
disqualification would continue did not provide him with justification
to allow his late appeal.
Id. at 7-8 (internal citations omitted) (emphasis added). Therefore, we affirmed the
Board’s dismissal of the appeal as untimely. Id. at 9.
In this case, although Claimant did not testify to exactly when he received the
Notice, he did admit receiving it. Bd.’s F.F. No. 6; N.T., 5/29/20, at 7-8. As in
Boesch, the Notice clearly stated: “This disqualification will continue to apply until
you register [for employment search services].” R. Item No. 3. The Notice also
informed Claimant that he needed to file an appeal by January 28, 2020 if he
disagreed with the Department’s determination. Id.; Bd.’s F.F. No 6. The record
establishes that after receiving the Notice, Claimant took no action to challenge the
10
Department’s decision until he was laid off again in March 2020 and his ineligibility
for UC benefits resumed. See R. Item No. 1. Like the claimant in Boesch, Claimant
here admitted that he “didn’t care about if [he] follow[ed] whatever [the Notice said]
because [he] was only off [for] two days” before he “went back to work.” N.T.,
5/29/20, at 7. Based on the evidence of record, the Board determined that Claimant
misread the Notice and did not realize the ongoing nature of his disqualification.
Bd.’s F.F. No. 7. Critically, Claimant does not challenge any of these factual
findings in either his Petition for Review or his appellate brief, so they are conclusive
on appeal. Hessou, 942 A.2d at 199. We agree with the Board that Claimant’s
misunderstanding of the Notice did not justify his late appeal. See Boesch, slip op.
at 8 (“[The c]laimant’s failure to recognize the full implication that the
disqualification would continue did not provide him with justification to allow his
late appeal.”).
Claimant offered no evidence establishing that his 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. The record shows
that the Department did not provide Claimant with inaccurate or misleading
information regarding the availability, timing, or need to appeal. Claimant’s
apparent misunderstanding of the clear language in the Notice is not the
Department’s error. Rather, the record establishes that Claimant’s late appeal was
caused by his misreading of the Notice and his deliberate decision to not pursue an
appeal after his return to work. We conclude, based on the evidence of record, that
11
Claimant’s late appeal was not caused by an administrative breakdown, but by his
own negligence.10
Conclusion
Accordingly, because we conclude that Claimant’s appeal was untimely and
he did not establish a right to nunc pro tunc relief, we affirm the Board’s Order.
__________________________________
ELLEN CEISLER, Judge
10
Although Claimant does not argue this issue on appeal, we also conclude, based on the
evidence of record, that he failed to establish an administrative breakdown with regard to the
Department’s mailing of the Notice. When he initially applied for UC benefits, Claimant notified
the Department that he resided at 411 Ridge Avenue in McSherrystown, Pennsylvania. R. Item
No. 1; N.T., 5/29/20, at 7. The record shows that the Department mailed both the December 26,
2019 letter and the Notice to that address. See R. Item Nos. 2, 3; Bd.’s F.F. No. 6. At the hearing,
Claimant testified that he did not receive the Notice until after the appeal deadline had passed
because he had moved out of his sister’s home and she did not give him his mail. N.T., 5/29/20,
at 7. While Claimant testified that he notified the Department of his change of address, id., the
Department’s claim records show that he never updated his address with the Department, see R.
Item No. 1. It is well settled that the claimant bears “the responsibility of notifying the Department
of [a] change in address at the time it occur[s].” Duhigg v. Unemployment Comp. Bd. of Rev., 181
A.3d 1, 5 (Pa. Cmwlth. 2017). Moreover, “[n]otices . . . to [UC] claimants which state the last day
to file an appeal therefrom and which are properly addressed and not returned by the postal
authorities are presumed to be received, and a claimant’s appeal which is not filed within [15]
calendar days after notice of the action was mailed to a claimant’s last known address is not timely
filed.” Id. (citation omitted). We conclude that the Department fulfilled its statutory obligation
by mailing the Notice to Claimant’s last known postal address, see 43 P.S. § 821(e), and that
Claimant’s failure to notify the Department of his new address was the result of his own
negligence.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Marcos Garcia, :
Petitioner :
:
v. : No. 954 C.D. 2020
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 11th day of June, 2021, we hereby AFFIRM the August 27,
2020 Order of the Unemployment Compensation Board of Review.
__________________________________
ELLEN CEISLER, Judge