E. McCord v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric McCord, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 722 C.D. 2015
Respondent :
:
:
Eric McCord, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 723 C.D. 2015
Respondent : Submitted: October 9, 2015
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 30, 2015
Eric McCord (Claimant) petitions this Court, pro se, for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) April 3, 2015 orders
dismissing his appeals from the Referee’s decisions denying him UC benefits.1
Thereafter, the UCBR filed an application for relief seeking to strike Claimant’s brief
and dismiss his appeals.
1
The UCBR order in decision number B-577113 relates to Claimant’s UC benefits. The
UCBR order in decision number B-577114 involves Claimant’s emergency UC benefits. By June
2, 2015 order, this Court consolidated the appeals.
Claimant was employed by Precision Pipeline (Employer) as a full-time
welder helper from October 27, 2011 through November 1, 2011. Employer has a
policy which provides that all employees are expected to be on time and ready to
work each work day at 7:00 a.m. unless otherwise advised, and that it is the
employee’s responsibility to inform the field office or foreman as soon as possible if
he or she is unable to report to work at the scheduled time. Claimant signed an
acknowledgement that he received, and would read and study, the employee
handbook which contained the attendance policy. Claimant was granted leave for the
weekend of October 29 and October 30, 2011, due to his father’s illness. Claimant
was scheduled to work on October 31 and November 1, 2011. Claimant did not
report to work or contact Employer on October 31 or November 1, 2011. Employer
discharged Claimant effective November 1, 2011 for Claimant’s failure to report to
work or contact Employer on October 31 and November 1, 2011.
Claimant applied for UC benefits on January 8, 2012. Claimant was
receiving UC benefits until Claimant applied for emergency UC (EUC) benefits at
which time Employer filed a request for relief. On January 15, 2013, the Allentown
UC Service Center denied Claimant UC benefits under Section 402(b) of the UC Law
(Law),2 and denied Claimant EUC benefits under Section 4001(b) of the EUC Act of
2008.3 Claimant appealed and, on March 15, 2013, a Referee hearing was held. On
March 19, 2013, the Referee affirmed the UC Service Center’s determination as
modified, denying Claimant UC benefits under Section 402(e) of the Law,4 and
affirming the UC Service Center’s decision relating to Claimant’s ineligibility for
EUC benefits. Claimant appealed from the Referee’s decision to the UCBR by fax
2
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(b) (relating to voluntary employment termination).
3
Title IV of the Supplemental Appropriation Act of 2008, P.L. 110–252, 122 Stat. 2353,
Section 4001(b), 26 U.S.C. § 3304 Note.
4
43 P.S. § 802(e) (relating to willful misconduct).
2
on February 2, 2015, 23 months later. A remand hearing was held on March 16, 2015
and on April 3, 2015, the UCBR dismissed Claimant’s appeals as untimely. Claimant
appealed to this Court.5
The UCBR filed a motion to strike Claimant’s brief and dismiss his
appeals because the sole issue is one of timeliness which Claimant failed to preserve
for appeal by not raising the timeliness issue in his brief. “While this Court is
generally inclined to construe pro se filings liberally, . . . ‘[a]ny lay person who
chooses to represent himself in a legal proceeding must assume the risk that his lack
of expertise and legal training may prove to be his undoing.’” Means v. Housing
Auth. of City of Pittsburgh, 747 A.2d 1286, 1289 (Pa. Cmwlth. 2000) (quoting Daly
v. Unemployment Comp. Bd. of Review, 631 A.2d 720, 722 (Pa. Cmwlth. 1993)).
Pennsylvania Rule of Appellate Procedure 2101 provides:
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise
they may be suppressed, and, if the defects are in the brief
or reproduced record of the appellant and are substantial,
the appeal or other matter may be quashed or dismissed.
Pa.R.A.P. 2101 (emphasis added).
Here, Claimant appealed from the UCBR’s orders which dismissed his
appeals as untimely. However, in his brief, Claimant argued only the merits of the
Referee’s decisions, which were not addressed by the UCBR and, thus, are not before
us on appeal.6 Specifically, Claimant’s “Statement of Questions Involved” include:
5
“Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence.” Miller v. Unemployment Comp. Bd. of Review, 83 A.3d 484, 486 n.2 (Pa.
Cmwlth. 2014).
6
Although Claimant alleges reasons for the untimeliness of his appeal in his Petition for
Review,
his failure to address the issue in his brief leads to our conclusion that
the issue has been abandoned and therefore waived. See Jimoh v.
3
“1. Whether [Claimant] quit or what caused the separation[; and] 2. Whether
[C]laimant was separated due to a car accident.” Claimant Br. at 6. Further,
Claimant’s argument in its entirety is as follows:
In 2011, the Pennsylvania [UC] [sic] reported that
[C]laimant voluntarily quit. I’ve filed appeals to the
[UCBR] and sent the letters I have received from
[Employer]. [Employer] even faxed letters stating it was
their mistake and please adjust the records. The last hearing
I had from the . . . Referee and [Employer’s] payroll
specialist should have changed the decision [sic].
[Employer] told the [R]eferee that in fact it was their
mistake and corrected it. The [C]ourt should have a copy of
that recording.
Claimant Br. at 9.
It is clear that Claimant has “waived . . . [the timeliness argument]
because it was not presented in the statement of the issues nor in the argument
section[] of Claimant’s brief and was not raised as an issue on appeal from the
[R]eferee’s order[s].” Kilker v. Workmen’s Comp. Appeal Bd. (E.J. Rogan & Sons),
667 A.2d 1215, 1216 n.1 (Pa. Cmwlth. 1995). “Claimant’s failure to adhere to the
rules of appellate procedure and his failure to raise any issues within our scope of
review preclude any meaningful review by this Court.” Daly, 631 A.2d at 722.
Accordingly, we must dismiss Claimant’s appeal. Id.Unemployment Comp. Bd. of Review, 902 A.2d 608(Pa.Cmwlth.2006); McDonough v. Unemployment Comp. Bd. of
Review, 670 A.2d 749 (Pa.Cmwlth.1996); Tyler v. Unemployment
Comp. Bd. of Review, . . . 591 A.2d 1164 ([Pa.Cmwlth.]1991) (Issues
raised but not briefed are waived).
Tracy v. Unemployment Comp. Bd. of Review, 23 A.2d 612, 616 n.3 (Pa. Cmwlth. 2011).
4
For all of the above reasons, the UCBR’s application for relief to strike
Claimant’s brief and dismiss his appeals is granted.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric McCord, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 722 C.D. 2015
Respondent :
:
:
Eric McCord, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 723 C.D. 2015
Respondent :
ORDER
AND NOW, this 30th day of December, 2015, the Unemployment
Compensation Board of Review’s Application for Relief is GRANTED, and the
appeals in the above-captioned matters are DISMISSED.
___________________________
ANNE E. COVEY, Judge