Carney v. Unemployment Comp. Bd. of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael F. Carney, :
Petitioner :
:
v. : No. 623 C.D. 2017
: Submitted: November 3, 2017
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: January 19, 2018
Michael F. Carney (Claimant), representing himself, petitions for
review from an order of the Unemployment Compensation Board of Review
(Board). The Board affirmed a referee’s decision dismissing Claimant’s appeal from
a determination of a local service unit of the Department of Labor and Industry
(Department). The Board found Claimant’s appeal was untimely under Section
501(e) of the Unemployment Compensation Law1 (Law). Claimant argues his
untimeliness should be excused because he did not see the appeal deadline on the
notice of determination when he first read it, and he was excusably distracted
because he recently became a father and started his own business. Upon review, we
affirm.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e).
I. Background
On November 10, 2016, the Department issued a notice of
determination disqualifying Claimant from unemployment compensation (UC)
benefits, finding a fault overpayment, and imposing penalties. Claimant does not
dispute that he received the notice of determination.
The determination stated in multiple places that Claimant’s final day to
appeal the determination to the Board was November 28, 2016. However, Claimant
did not mail his appeal until December 1, 2016.
A referee conducted a hearing limited to the issue of timeliness of
Claimant’s appeal. Claimant testified at the hearing. He explained he failed to see
the appeal deadline on the determination when he first read it. He also stated he
recently became a father and was in the process of starting a business during the
appeal period. The referee dismissed Claimant’s appeal as untimely under Section
501(e) of the Law.
Claimant appealed the dismissal to the Board. Although sympathetic,
the Board found Claimant’s explanation for his late appeal did not meet the criteria
for an exception to the 15-day appeal period imposed by Section 501(e).
Consequently, the Board determined it lacked jurisdiction to entertain the merits of
the case.
Claimant then filed a petition for review in this Court.
2
II. Issue
Claimant argues the Board erred in refusing to excuse the untimeliness
of his appeal from the Department’s determination. He contends he offered a
reasonable explanation for his lateness.
III. Discussion
On appeal,2 Claimant offers the same explanation he presented to the
referee and the Board, i.e., he failed to note the appeal deadline, and he was
distracted by the birth of his child and the demands of starting a business. Both the
referee and the Board found this explanation insufficient to provide an exception to
the appeal deadline. We agree.
Failure to file a timely appeal as required by Section 501(e) of the Law
is a jurisdictional defect. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d
1000 (Pa. Cmwlth. 2010). The time limit for a statutory appeal is mandatory; it may
not be extended as a matter of grace or indulgence. Id. To justify an exception to
the appeal deadline, Claimant must demonstrate that his delay resulted from
extraordinary circumstances involving fraud, a breakdown in the administrative
process, or non-negligent circumstances relating to Claimant himself. See id. This
is an extremely heavy burden. Blast Intermediate Unit No. 17 v. Unemployment
Comp. Bd. of Review, 645 A.2d 447 (Pa. Cmwlth. 1994); Reed v. Unemployment
Comp. Bd. of Review, 406 A.2d 852 (Pa. Cmwlth. 1979).
2
Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006(Pa. Cmwlth. 2014).
3
Claimant does not allege any fraud or breakdown in the administrative
process. Rather, he contends his personal circumstances made his lateness
excusable. We construe this contention as arguing non-negligent circumstances.
Unfortunately, Claimant’s argument is without merit.
A claimant’s failure to notice the appeal deadline in a UC determination
does not constitute a non-negligent circumstance justifying an untimely appeal.
Reed; Delaney v. Unemployment Comp. Bd. of Review, 368 A.2d 1351 (Pa.
Cmwlth. 1977). Thus, Claimant’s explanation that he failed to notice the appeal
deadline in the determination he received from the Department is legally insufficient
to excuse his failure to file a timely appeal.
The pressure of life events is likewise insufficient to excuse an untimely
appeal. This Court consistently rejects such excuses. See, e.g., Constantini v.
Unemployment Comp. Bd. of Review 173 A.3d 838 (Pa. Cmwlth. 2017), (claimant
dealing with several ongoing legal issues, repairing and securing home computer
network after a malware virus attack, recovering data information lost from wireless
devices due to the virus, and medical emergency appointments during the time
period prior to the appeal deadline); Maloy v. Unemployment Comp. Bd. of Review
(Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), 2016 Pa. Commw. Unpub.
LEXIS 271 (unreported) (claimant dealing with brother’s death, moving, and caring
for daughter and sick mother); Burgher v. Unemployment Comp. Bd. of Review (Pa.
Cmwlth., No. 1929 C.D. 2014, filed July 7, 2015), 2015 Pa. Commw. Unpub. LEXIS
461 (unreported) (claimant dealing with anxiety and stress from layoff); Rabe v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1785 C.D. 2013, filed
4
February 24, 2014), 2014 Pa. Commw. Unpub. LEXIS 115 (unreported) (claimant
dealing with financial stress and multiple pending court cases); Menges v.
Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2230 C.D. 2009, filed April
22, 2010), 2010 Pa. Commw. Unpub. LEXIS 254 (unreported) (claimant dealing
with a death in the family and lingering effects of a medical condition). We cite
these decisions as persuasive. See 210 Pa. Code §69.414(a).
Therefore, we conclude Claimant’s asserted stress and distraction from
the birth of a child and starting a business legally insufficient to excuse his untimely
appeal.
IV. Conclusion
Based on the foregoing, we affirm the Board’s dismissal of Claimant’s
appeal.
ROBERT SIMPSON, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael F. Carney, :
Petitioner :
:
v. : No. 623 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 19th day of January, 2018, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge