L. Bourzgui v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Loubna Bourzgui, :
:
Petitioner :
:
v. : No. 246 C.D. 2014
: Submitted: June 27, 2014
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: July 21, 2014
Loubna Bourzgui (Claimant), pro se, petitions for review of the
January 22, 2014 order of the Unemployment Compensation Board of Review
(Board). The Board determined that Claimant failed to file an appeal from the
decision and order issued by the Referee on September 24, 2013 within the
requisite fifteen (15) days and that, in accordance with Section 502 of the
Unemployment Compensation Law1 (Law), Claimant’s appeal was untimely. The
Board further determined that the “filing of the late appeal was not caused by fraud
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822.
Section 502 of the Law provides that a decision and order issued by the Referee shall be deemed
the final decision of the Board, unless an appeal is taken within fifteen (15) days after the date of
the decision and order. 43 P.S. § 822.
or its equivalent by the administrative authorities, a breakdown in the appellate
system, or by non-negligent conduct,” so as to allow the Board to treat Claimant’s
appeal as though it had been timely filed. See, e.g., Cook v. Unemployment
Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996) (An exception to
the rule barring late appeals exists if the untimely filing is due to exceptional
circumstances such as fraud, a breakdown in the administrative process, or non-
negligent conduct on the part of an appellant or counsel.); UPMC Health System v.
Unemployment Compensation Board of Review, 852 A.2d 467, 470 (Pa. Cmwlth.
2004). For the reasons that follow, we affirm the order of the Board.
Claimant filed an application for unemployment compensation
benefits on June 23, 2013 and benefits were initially awarded by the Department of
Labor and Industry. (Record Item (R. Item) 5, Notice of Determination; R. Item
19, Board Opinion (Board Op.), Findings of Fact (F.F.) ¶¶1-2.) Claimant’s
employer, Davita Dialysis, appealed the Department of Labor and Industry’s
determination, and a hearing on the merits was held before the Referee on
September 24, 2013. (R. Item 8, Notice of Hearing; R. Item 9, Employer
Exhibits.) On September 24, 2013, following the hearing, the Referee issued a
decision and order finding Claimant ineligible to receive unemployment
compensation benefits because she voluntarily left work without a necessitous and
compelling reason. (R. Item 19, Board Op., F.F. ¶4; R. Item 10, Referee Decision
and Order, F.F. ¶10); see also Section 402(b) of the Law, 43 P.S. § 802(b)
(providing, in relevant part, that “[a]n employe shall be ineligible for compensation
for any week… [i]n which [her] unemployment is due to voluntarily leaving work
without cause of a necessitous and compelling nature.”). A copy of the decision
and order issued by the Referee was mailed to the Claimant’s last known address,
2
the mailing was not returned as undeliverable by the post office, and the decision
and order clearly advised Claimant of the fifteen (15) days in which Claimant had
to perfect an appeal. (R. Item 19, Board Op., F.F. ¶¶5-7; R. Item 10, Referee
Decision and Order, Notice of Right to Appeal.) Claimant did not file an appeal
until November 18, 2013. (R. Item 11, Claimant’s Petition for Appeal; R. Item 19,
Board Op., F.F. ¶9.) In order for Claimant’s appeal to be timely, the appeal must
have been filed on or before October 9, 2013. (R. Item 19, Board Op., F.F. ¶8; R.
Item 10, Referee Decision and Order.)
Following Claimant’s untimely appeal, Claimant was advised of her
right to request a hearing in order to address whether her appeal should be
considered timely. (R. Item 13, Remand Hearing Notice.) On December 31, 2013,
a hearing was held and Claimant testified that she had not received a copy of the
Referee’s decision and order. (R. Item 17, Referee Remand Hearing.) In its
January 22, 2014 decision and order concluding that Claimant’s appeal was
untimely, the Board specifically stated that it “finds and concludes that the
[C]laimant’s allegation that she did not receive the notice of hearing and/or the
Referee’s decision is not credible.” (R. Item 19, Boar Op., Discussion.) As a
result of its findings and conclusions, the Board dismissed Claimant’s appeal. (Id.)
The Board declined to reconsider its decision and order. (R. Item 23, Board Denial
of Reconsideration.) Claimant appealed the Board’s dismissal to this Court. 2
Before this Court, Claimant argues that she did not voluntarily leave
employment without cause of a necessitous and compelling nature. Claimant’s
2
Our standard of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Temple
University v. Unemployment Compensation Board of Review, 772 A.2d 416, 418 n.1 (Pa. 2001).
3
arguments address the merits of the issues decided by the Referee. Claimant does
not argue that her appeal was timely filed or that it should be treated as though it
had been timely filed, nor does Claimant point to any evidence of record that
would support such an argument.
The burden to establish the right to file an untimely appeal is a heavy
one, and it is a burden that is born by the claimant. Lopresti v. Unemployment
Compensation Board of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012). The only
evidence presented by Claimant in support of this burden was her own testimony.
Claimant testified that she received mail from the post office irregularly at the
mobile home park where she lives. (R. Item 17, Referee Remand Hearing at 7.)
She further testified that she received all mail from the Unemployment
Compensation Service Center and the Board, except the notice of her employer’s
appeal, the notice of the first hearing before the Referee, and the Referee’s decision
and order. (Id. at 12.) Finally, Claimant testified that when her unemployment
compensation ceased, she believed it was due to the federal government shutdown,
and that she contacted the Unemployment Compensation Service Center only after
the federal government shutdown ended and her unemployment benefits did not
resume. (Id. at 10-11.) The Board did not find this testimony credible.
The Board is the ultimate finder of fact in unemployment
compensation cases; both the Board’s findings and credibility determinations are
binding and conclusive on appeal, if supported by substantial evidence. Curran v.
Unemployment Compensation Board of Review, 752 A.2d 938, 940 (Pa. Cmwlth.
2000). Here, the Board did not find Claimant credible. As the only evidence
Claimant offered to support her claim that the appeal should be treated as timely is
her testimony, Claimant has failed to meet her heavy burden. The appeal
4
provisions of the Law are mandatory; failure to file an appeal within the required
fifteen (15) days, without proof of exceptional circumstances, mandates dismissal.
Dumberth v. Unemployment Compensation Board of Review, 837 A.2d 678, 681
(Pa. Cmwlth. 2003). This is exactly what the Board did here. Therefore, we
affirm the order of the Board.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Loubna Bourzgui, :
:
Petitioner :
:
v. : No. 246 C.D. 2014
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 21st day of July, 2014, the Order of the
Unemployment Compensation Board of Review in the above-captioned matter is
hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge