Vereb v. Unemployment Compensation Board of Review

DOYLE, Judge.

Gloria Vereb (Claimant) appeals from an order of the Unemployment Compensation Board of Review (Board), which denied benefits. The Board’s order had vacated a referee’s dismissal of Spar Marketing Services, Inc.’s (Employer) appeal from a decision awarding Claimant benefits by the Office of Employment Security (OES). The referee’s decision to dismiss Employer’s appeal was not based on the merits, but rather, on his determination that Employer had failed to file a timely appeal under Section 501(e) of the Pennsylvania Unemployment Compensation Law (Law).¹

Before working for Employer, Claimant had previously been employed by Borden, Inc. However, in May of 1994, Claimant was laid off from Borden and applied for unemployment benefits effective May 8,1994.² On July 15, 1994, Claimant obtained a position with Employer as a field representative.³ At that time, Claimant signed an “Independent Contractor Agreement,” in which Claimant acknowledged that her relationship with Employer would be that of an independent contractor rather than an employee.⁴ For reasons which are not clear from the record, Claimant’s position with Employer ended almost immediately after she was hired.

On August 31, 1994, OES issued and mailed a Notice of Determination, finding that Claimant was not self-employed and was, therefore, not ineligible for benefits under Section 402(h) of the Law.⁵ OES concluded that Employer’s classification of Claimant as an independent contractor under its agreement with her was not determinative of her status. Rather, OES deemed that Claimant was not self-employed since she was “not free from the control of [Employer]” in performing her job.⁶ (OES Notice of Determination.) Accordingly, OES awarded Claimant benefits in the amount of $238.00 per week beginning with the week ending July 23,1994.

Employer filed an appeal from this Determination, which was received by OES on September 16, 1994, sixteen days after the Notice of Determination was issued and mailed to Employer. The Notice of Determination which was sent to Employer clearly explained that “this Determination becomes final unless you file an appeal within 15 days from the date this Determination was mailed.... If your appeal is filed by mail, ... it must be addressed to your Pennsylvania Job Center and postmarked on or before the last day to appeal shown above on this Determination.” ⁷ (OES Notice of Determination.) (Emphasis added.) Although Employer’s appeal was purportedly mailed on September 12,1994, it was not stamped with an official postmark of the United States Postal Service. Instead, the purported date of mailing was merely imprinted on the envelope with a stamp from a private postage meter. Following a hearing, the referee dismissed Employer’s appeal on the grounds that it was untimely filed, and that he, therefore, lacked jurisdiction to hear the appeal under Section 501(e) of the Law, 43 P.S. § 821(e).⁸

Employer filed a timely appeal from the referee’s decision with the Board. The Board issued an order on January 27, 1995, vacating the decision of the referee, reversing the August 31, 1994 determination of OES, and denying Claimant benefits on the merits. The Board concluded that Employer’s initial appeal was timely under Section 501(e) of the Law, finding that, in order to have arrived in Pennsylvania by September 16th, Employer’s appeal must have been mailed from the state of Minnesota no later than September 15, 1994. Moreover, the Board concluded that Claimant was ineligible for benefits under Sections 402(h)⁹ and 4ffi(2)(B)¹⁰ of the Law, because she was customarily engaged in an independently established trade and she was free from the control of Employer. It is from this order that Claimant now appeals.

On appeal, Claimant raises two issues for our review: (1) whether Employer’s appeal to the referee was timely filed, so as to vest the referee and Board with jurisdiction, where the Board received Employer’s appeal one day after the expiration of the fifteen-day time limit set forth in Section 501(e) of the Law and Employer’s letter of appeal did not bear an official United States postmark date; and (2) whether the Board’s conclusion that Claimant was ineligible for unemployment benefits because she was a self-employed, independent contractor was supported by substantial evidence.

For the reasons enumerated below, we conclude that the Board erred in finding that Employer’s appeal to the referee was timely. Accordingly, since the Board lacked jurisdiction to reach the merits in this case, its decision vacating the referee’s order and denying Claimant benefits must be reversed, and the decision of OES which granted Claimant benefits must be reinstated.

The general requirement for filing a timely appeal from an adverse determination by OES is found in Section 501(e) of the Law, 43 P.S. § 821(e), which provides that an appeal must be filed “within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address.” Furthermore, this fifteen-day time limit is mandatory and subject to strict application. If an appeal from a determination of OES is not filed within fifteen days of its mailing, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter. Phares v. Unemployment Compensation Board of Review, 85 Pa.Cmwlth. 475, 482 A.2d 1187 (1984); Darroch v. Unemployment Compensation Board of Review, 156 Pa.Cmwlth. 435, 627 A.2d 1235 (1993).

Nevertheless, there is a small exception to the strict fifteen-day filing deadline for appeals which are filed by mail and bear an official United States postmark. Pursuant to Section 101.82(d) of Title 34 of the Pennsylvania Code, 34 Pa.Code § 101.82(d), an appeal will be deemed to be timely filed even if received after this fifteen-day period if the envelope in which the appeal was mailed bears a postmark with a date which falls within the fifteen-day time period mandated by Section 501(e) of the Law.

In the present case, Claimant, relying on our decision in Edwards v. Unemployment Compensation Board of Review, 162 Pa.Cmwlth. 698, 639 A.2d 1279 (1994), argues that since the envelope containing Employer’s appeal did not have an official United States postmark on it, the appeal must be deemed to have been filed on the date it was received and not on the date purportedly shown by the private postage meter stamp. In Edwards, we found that an appeal was untimely filed where the envelope containing the appeal bore a United States postmark with a date which was only one day after the end of the fifteen-day filing period. In reaching that result, we rejected the Board’s finding that the employer had actually mailed the appeal the day before, and within the fifteen-day filing period, as being irrelevant under the Board’s own regulations. We summarized our conclusion as follows:

The Board is bound to follow its own regulations in determining the perfection date of an appeal. In this case, the Board permitted the Employer to bypass the regulations by allowing testimony of the deposit of the appeal with the post office to constitute the date of filing rather than what the regulation clearly défínes as the date of mailing, i.e., the postmark date. By substituting the date of mailing for that of the postmark, the Board renders its own regulation meaningless and undermines the rationale stated in Miller v. Unemployment Compensation Board of Review, 505 Pa. 8, 476 A.2d 364 (1984), that the timeliness of papers filed with the courts must be possible to determine from either the face of the document or from the internal records of the court. The postmark is the most reliable source from which one can determine the precise timing of mailing, as opposed to a party’s testimony.

Edwards, 639 A.2d at 1281-82 (citations omitted) (footnotes omitted).

Similarly, in this case, Claimant argues that neither the private postage meter stamp, nor the testimony presented by Employer showing that the appeal was in fact mailed before the filing deadline, can substitute for the strict requirements under the regulations. Id.; Darroch; see E.B.S. v. Unemployment Compensation Board of Review, 150 Pa.Cmwlth. 10, 614 A.2d 332 (1992) (private postage meter stamp insufficient to establish date of mailing). Therefore, since the appeal was not received before the filing deadline and did not have an official United States postmark on the envelope, Claimant concludes that the appeal was filed late as a matter of law.

Nevertheless, the Board contends that the rules governing the filing of appeals to the referee should not be strictly enforced under the unusual facts of this case. In support of its position, the Board points to the Supreme Court’s decision in Miller v. Unemployment Compensation Board of Review, 505 Pa. 8, 476 A.2d 364 (1984), in which the Supreme Court reversed this Court’s decision to quash an appeal to this Court from an adverse decision of the Board as untimely filed. In Miller, the appeal was mailed before the filing deadline but received by the prothonotaiys office three days after that deadline, on Monday, September 20, 1982.¹¹ Under Pa. R.A.P. 1514(a), an appeal is deemed to be filed either on the date received or “on the date deposited in the United States mail, as shown on a U.S. Postal Service Form 3817 certificate of mailing.” The employer in Miller failed to obtain a Service Form 3817 certificate of mailing or have the certified mail form date-stamped since the post office was closed. However, the Supreme Court took judicial notice of the fact that the Harrisburg post office was closed on Saturday and Sunday. The Supreme Court concluded from this fact that the appeal must have been mailed by the employer, and received by the post office, by Friday, September 17,1982, at the latest. Since Friday the 17th was within the thirty-day appeal period, the Supreme Court found that the employer had substantially complied with Pa. R.A.P. 1514 and that under those specific facts dismissal of the appeal was unwarranted.

Although Miller is factually similar to the ease sub judice, we find it distinguishable in at least one important respect and decline to extend its holding to the situation presently before us. The Supreme Court’s decision in Miller, which involved an appeal from the Board to this Court, was ultimately based on its interpretation of the Rules of Appellate Procedure, which it noted are to be “liberally construed.” Pa. R.A.P. 105(a). The present case, however, concerns an appeal to a referee of the Department of Labor and Industry. As such, it was governed by the Department’s regulations and not by the Rules of Appellate Procedure. We recently explained the distinction between these two types of appeal in Gannett Satellite Information Network, Inc. v. Unemployment Compensation Board of Review, 661 A.2d 502, 505 (Pa.Cmwlth.1995),¹² as follows:

[I]n Miller the Supreme Court held that the appellant had ‘substantially complied’ with rule 1514 by providing evidence that the appeal had been placed in the mail before the expiration of the appeal period. However, the regulations governing unemployment compensation appeals do not provide for ‘substantial compliance.’ We have often held that the appeal provisions of the Law are mandatory, and absent an adequate excuse, failure to file an appeal within the time prescribed requires the appeal to be dismissed.

Accordingly, while Miller is the standard by which the timeliness of appeals under the Rules of Appellate Procedure must certainly be judged, the Supreme Court’s holding in that case is not applicable to appeals made to administrative agencies. See Gannett;, Edwards; E.B.S.

We believe that our decision today is supported by the long established principle in this Commonwealth that filing deadlines should be strictly enforced and that any exception to this principle should be narrowly construed. As the Supreme Court in Miller recognized: “[i]t would be inefficient and unduly burdensome to require courts to hold evidentiary hearings to determine timeliness. Any such rule would defeat the purpose the timeliness requirements are meant to accomplish.” 505 Pa. at 13, 476 A.2d at 366. Similarly, requiring administrative agencies to conduct hearings on the timeliness of appeals filed with them would be unduly burdensome and would tend to defeat the very purpose of having filing requirements in the first place while creating the opportunity for abuse of the rules. See Gannett.

Finally, we must emphasize the fact that Employer does not allege that its failure to comply with the filing deadline resulted from a breakdown of the postal service, the negligence of the Department, or the negligence of a third party. Furthermore, this case is not an example of undue hardship where Employer was unable to comply with the filing requirements because of causes outside its. control. Rather, Employer failed to have its appeal stamped with an official United States postmark, as clearly required by 34 Pa.Code § 101.82(d) as well as the Notice of Determination it received from OES. The Department, as authorized by the Legislature, has established strict, unambiguous requirements for filing an appeal with the Board or a referee. Under the circumstances of this case, there is no reason for this Court to find that these requirements are unfair or otherwise invalid so as to create a judicial exception to the regulations promulgated by the Department.¹³

Accordingly, the order of the Board is reversed, and the decision of OES dismissing Employer’s appeal and granting Claimant benefits is reinstated.

ORDER

NOW, May 24, 1996, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed; and the order of the referee dismissing Spar Marketing Services, Inc.’s appeal as having been untimely filed and grants ing compensation benefits to Gloria Vereb is reinstated.

1 . Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).

2 . The reasons underlying Claimant’s unemployment from Borden did not disqualify her for unemployment benefits under the Law and are not material to the present appeal.

3 . “[Employer] is in the business of servicing the products of larger manufacturers located in retail outlets; [Employer] utilizes the services of approximately 3000 representatives to perform its marketing service.” (Board's Finding of Fact No. 2.) During Claimant’s brief association with Employer, Claimant worked on an account which Employer had with Proctor and Gamble.

4 . Under this agreement, Claimant also agreed not to represent herself as an employee of Employer at any time while retaining the right to contract to do work for other companies. (Board's Finding of Fact No. 4.)

5 . Section 402(h) of the Law provides that a claimant shall be ineligible to receive compensation for any week in which he or she is engaged in self-employment. 43 P.S. § 802(h).

6 . OES specifically found that ”[C]laimant must follow the guidelines and adhere to company policies in carring [sic] out her assignments. [Employer] set the fee for said services and reimburses the [Claimant for her services.” (OES Notice of Determination.)

7 . On the top of the Notice of Determination, it stated that "The Last Day to File an Appeal from this Determination is: SEP 15, 1994.” (OES Notice of Determination.) (Emphasis in original.)

8 . Section 501(e) provides that a determination by OES becomes final, unless an appeal is filed within fifteen days after proper notification of said determination has been given to all affected parties.

9 .43 P.S. § 802(h).

10 . 43 P.S. § 753(/)(2)(B). Section 4(f)(2)(B) provides that:

Services performed by an individual for wages shall be deemed to be employment subject to this act, unless and until it is shown to the satisfaction of the department that — (a) such individual has been and will continue to be free from control or direction over the performance of such services both under his contract of service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business.

Id.

11 . The appeal was received by the Prothonota-ry's Office of our Court on a Monday. Therefore, while the appeal was three calendar days late, it was actually only one day late for filing purposes under Section 1908 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1908, which provides that "[w]henever the last day of any such period [of time under a statute or regulation] shall fall on Saturday or Sunday ... such day shall be omitted from the computation.”

12 . The facts in Gannett are very similar to those in the present case. First, Gannett involved an appeal to a referee from a decision by OES, and the date of mailing was stamped with a private postage meter rather than an official United States postmark. Second, and also like the present case, the filing deadline was on a Friday, but the appeal was not received until the following Monday. Thus, the appeal to the referee in both Gannett and the present case were filed one day late. See Section 1908 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1908; see also supra note 12.

13 . Since we hold that the Board lacked jurisdiction because Employer’s appeal to the referee was untimely, we do not address Claimant’s second argument regarding the merits of the Board’s determination that Claimant was a self-employed, independent contractor.