F.M. Gwee v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Famatta M. Gwee, :
:
Petitioner :
:
v. : No. 2429 C.D. 2014
: No. 2437 C.D. 2014
: Submitted: November 6, 2015
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: December 30, 2015
Famatta M. Gwee (Claimant) petitions this Court for review of two
December 2, 2014 orders of the Unemployment Compensation Board of Review
(Board) dismissing her appeals as untimely pursuant to Section 502 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. §822.
Section 502 states, in pertinent part:
[T[he parties and their attorneys or other representatives of record
and the department shall be duly notified of the time and place of a
referee’s hearing and of the referee’s decision, and the reasons
therefor, which shall be deemed the final decision of the board,
(Footnote continued on next page…)
On August 12, 2014, following hearings at which both Claimant and
an unemployment compensation claims examiner testified, the Referee issued two
decisions that affirmed and modified Notices of Determination mailed on July 11,
2014. (Certified Record (R.) Item 13, Referee’s Decisions/Orders.) The Referee:
(i) denied Claimant unemployment compensation benefits under Section 401(c) of
the Law, 43 P.S. §801(c), for benefits paid for weeks ending July 6, 2013 through
December 28, 2013,2 imposed a fault overpayment under Section 804(a) of the
Law, 43 P.S. §874(a), and assessed 28 penalty weeks under Section 801(b) of the
Law, 43 P.S. §871(b); and (ii) denied Claimant emergency unemployment
compensation benefits provided under the Emergency Unemployment
Compensation Act of 20083 (EUC Act) for weeks ending January 7, 2012 through
June 23, 2012, and January 5, 2013 through May 11, 2013, assessed a fraud
overpayment under Section 4005(a) of the EUC Act in the amount of $11,213, and
(continued…)
unless an appeal is filed therefrom, within fifteen days after the
date of such decision the board acts on its own motion, to review
the decision of the referee…
43 P.S. §822.
2
The referee determined that although Claimant was informed, prior to filing for benefits, by the
PA UC Handbook to report all work and earnings, she filed for and received a total of $6,838 in
unemployment benefits to which she was not entitled by consistently failing to report her
employment with Multicultural Community Family Services-PA and earnings therefrom.
(Record (R.) Item 13, Referee’s Decision/Orders, Appeal No. 14-09-B-6897, Findings of Fact
(F.F.) ¶¶3-4.)
3
Title IV of the Supplemental Appropriations Act of 2008, P.L. 110-252, 122 Stat. 2323,
Sections 4001-4007, 26 U.S.C. §3304.
2
assessed 46 penalty weeks under Section 801(b) of the Law and Section 4005(a)(1)
of the EUC Act.4 (Id.)
Also on August 12, 2014, a copy of each of the Referee’s decisions
was mailed to Claimant at her last known post office address, and there is no
indication that either was returned by the postal authorities as undeliverable. (R.
Item 16, Board’s Decisions and Orders, F.F. ¶¶2, 4.) Each of the decisions
included a notice advising Claimant that she had 15 days within which to file an
appeal to the Board. (R. Item 13, Referee’s Decisions/Orders.) Thus, in order to
be timely, Claimant’s appeals of the Referee’s decisions had to be filed on or
before August 27, 2014. (R. Item 16, Board’s Decisions/Orders, F.F. ¶5.)
However, Claimant’s appeal was not filed until October 17, 2014.5 (R. Item 14,
Claimant’s Petitions for Appeal from Referee’s Decisions.) On October 28, 2014,
the Board advised Claimant in writing that her petitions for appeal appeared to be
untimely and informed her that, if she believed that her appeals were or should be
deemed to be timely filed, she must reply in writing and request that a hearing be
4
The Referee stated “[a]fter carefully reviewing the record, the Referee finds that Claimant
improperly filed a claim for benefits. The record establishes that Claimant was aware of the
reporting requirements both [from] the PA UC Handbook and secondly after speaking with a
claims examiner instructing on how to file a claim for benefits.” (R. Item 13, Referee’s
Decision/Orders, Appeal No. EUC-14-09-B-6914, Reasoning.)
5
Claimant’s Petitions for Appeal to the Board correctly recite the date of issuance of the
Referee’s Decisions/Orders as August 12, 2014 and correctly recite the final date for appeal of
those decisions as August 27, 2014; however, the Petitions for Appeal also refer to a different
appeal, identified as Appeal No. 14-09-B-8245, which is the appeal number assigned to an
appeal, deemed untimely, not from a referee’s determination but from Notices of Determination
that were issued to Claimant on July 31, 2014. (R. Item 14, Claimant’s Petitions for Appeal
from Referee’s Decisions w/Attachments; Attachment to Claimant’s Brief at 13.)
3
held to set forth her reasons why she believed her appeals were timely filed. The
Board’s letter stated the following, in relevant part:
If you believe that you filed your appeal within the
fifteen (15) day period or that it should be deemed timely
for other reasons, you must request in writing that a
hearing be scheduled to allow you the opportunity to set
forth your reasons as to why you believe your appeal was
timely filed. Please mail your request to the Board at the
above letterhead address. Any such hearing involves
only the issue of whether the appeal was timely filed. No
ruling is made on the merits of the case unless the appeal
is first ruled timely.
(R. Item 15, Board’s Letter on Timeliness) (emphasis in original.) Claimant failed
to respond to the Board’s letter, and on December 2, 2014, the Board issued two
Decisions and Orders, each dismissing Claimant’s appeals as untimely under
Section 502 of the Law, 42 P.S. §822. (R. Item 16, Board’s Decisions and Orders.)
Claimant filed the instant petitions for review appealing the Board’s orders to this
Court.6 By Order dated April 8, 2015, this Court granted the Board’s motion to
consolidate the appeals.
In these consolidated appeals, Claimant is represented by counsel.
Claimant does not dispute that she failed to contact the Board to request a hearing.
Instead, she contends that on August 22, 2014 she timely appealed the Referee’s
decisions. As purported proof, Claimant attaches to her brief a copy of a referee’s
decision in a separate appeal from Notices of Determination issued on July 31,
2014; there, the referee found that Claimant’s appeal from those Notices of
6
Our review of the Board’s decision is limited to determining whether necessary findings of fact
are supported by substantial evidence, whether errors of law were committed and whether
constitutional rights were violated. Chishko v. Unemployment Compensation Board of Review,
934 A.2d 172, 176 n.4 (Pa. Cmwlth. 2007).
4
Determination was filed via fax on August 22, 2014, seven days after the final date
to file, and was therefore untimely.7 Further, and notwithstanding her contention
before this Court that she filed a timely appeal from the Referee’s decisions,
Claimant also asserts that the Board erred in its determination that the Referee’s
decisions were properly mailed to her last known post office address. Claimant
offers no proof other than to state that she moved to her present address at 32
Wellington Road, Upper Darby, Pennsylvania in October, 2013; however, both the
Referee’s decisions mailed August 12, 2014 and the Board’s October 28, 2014
letter on timeliness were mailed to Claimant at 32 Wellington Road, Upper Darby,
PA. (R. Item 13, R. Item 15.)
In short, Claimant offers no evidence whatsoever that she filed a
timely appeal in the matter before us. Her assertion that she filed a timely appeal is
entirely based on the information contained in a referee’s October 6, 2014 decision
and order that related solely to a different appeal, in which the referee determined
that on August 22, 2014 Claimant filed a late appeal from a July 31, 2014 Notice
of Determination.8 Although Claimant’s Petitions for Review correctly reference
7
The Appeal Number referenced in the Referee’s Decision/Order attached to Claimant’s brief is
14-09-B-8245. In that matter, the referee noted that Claimant appeared before her and testified
as to the timeliness of her appeal from notices of determination and the referee concluded that
the claimant “offered several versions of testimony related to timeliness, specifically that she
filed a timely appeal on July 12, 2014, that she did not receive the determinations because they
were mailed to her old address, and finally she had issues with her mail. The Referee rejects the
claimant’s testimony at the hearing as not credible related to the issue of whether the claimant
filed a timely appeal or was otherwise prevented from doing so.” (Referee’s Decision/Order
dated October 6, 2014, Attachment to Claimant’s Brief.)
8
In its brief, the Board notes that it processed a timely appeal to the referee’s October 6, 2014
decision in Appeal No. 14-09-B-8245 and states that it affirmed the referee in that matter.
(Board’s Brief at 8 n.7.)
5
the Board’s decision numbers in the matter before us and the dates on which those
decisions and orders were entered, Claimant’s brief incorrectly recites as the
“Order in Question” the text of the order issued by the referee on October 6, 2014
in the separate appeal that is not before this Court. (Claimant’s Brief at 3.)
Section 502 of the Law specifically provides that “[t]he referee’s
decision, and the reasons therefore…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. The referee’s decision becomes final, and the Board
does not have jurisdiction to consider the matter, if an appeal is not filed within the
15-day period. Hessou v. Unemployment Compensation Board of Review, 942
A.2d 194, 197-98 (Pa. Cmwlth. 2008). Section 101.61(a) of the regulations
promulgated by the Department of Labor & Industry provides:
(a) 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 a
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 from
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). Further, “the Board is without jurisdiction to further
consider the matter under [S]ection 502, and it is precluded from considering the
facts underlying the timeliness of appeal unless they are adduced at a hearing on
6
that issue.” Han v. Unemployment Compensation Board of Review, 42 A.3d 1155,
1158 (Pa. Cmwlth. 2012).
We conclude that the Board properly determined that Claimant failed
to request a hearing to offer testimony as to why her appeals were timely or should
be deemed timely, and that her appeals were properly dismissed. Moreover, given
Claimant’s reliance on a filing date from a separate and distinct appeal that is of no
consequence in the matter before us, her assertion that she filed timely appeals is
totally unsupported and without merit, and dismissal of her appeals as untimely is
mandated. Accordingly, the Board’s orders are affirmed.
____________________________________
JAMES GARDNER COLINS, Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Famatta M. Gwee, :
:
Petitioner :
:
v. : No. 2429 C.D. 2014
: No. 2437 C.D. 2014
:
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 30th day of December, 2015, the orders of the
Unemployment Compensation Board of Review in the above-captioned matters are
AFFIRMED.
____________________________________
JAMES GARDNER COLINS, Senior Judge