J.H. Glass v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John H. Glass, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 698 C.D. 2019
Respondent : Submitted: September 27, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: December 3, 2019
John H. Glass (Claimant) petitions this Court for review of the
Unemployment Compensation (UC) Board of Review’s (UCBR) May 21, 2019 order
dismissing Claimant’s appeal as untimely. The sole issue before this Court is
whether the UCBR properly dismissed Claimant’s appeal as untimely. After review,
we affirm.
Trail Electrical Service (Employer) employed Claimant as a full-time
electrician’s helper from April 1, 2018 until September 11, 2018, his last day of work.
On July 12, 2018, Claimant arrived at work smelling of alcohol and in an intoxicated
condition. On or about July 13, 2018, Employer warned Claimant that such conduct
was unacceptable. On September 11, 2018, Claimant again appeared at work
smelling of alcohol and in an intoxicated condition. Employer suspended Claimant.
On or about September 17, 2018, Employer terminated Claimant’s employment for
twice appearing at work in an intoxicated state and presenting a safety concern for
himself and others.
Claimant applied for UC benefits. On January 25, 2019, the Harrisburg
Overflow Center (UC Service Center) denied Claimant UC benefits under Section
402(e) of the UC Law (Law).1 Claimant appealed and a Referee hearing was held.
On March 5, 2019, the Referee affirmed the UC Service Center’s determination.
Claimant appealed to the UCBR. On March 27, 2019, the UCBR notified Claimant
that the appeal appeared untimely on its face and, if he believed it was timely, he
must request a hearing on the timeliness issue. On April 4, 2019, Claimant requested
a hearing. After a remand hearing was held, the UCBR dismissed Claimant’s appeal
as untimely pursuant to Section 501(e) of the Law.2 Claimant appealed to this
Court.3
Initially, Section 501(e) of the Law mandates:
Unless the claimant . . . files an appeal with the [UCBR],
from the determination contained in any notice required to
be furnished by the [Department of Labor and Industry
(Department)] under [S]ection [501](a), (c) and (d), [43 P.S.
§ 801(a), (c)-(d),] within fifteen calendar days after such
notice was delivered to him personally, or was mailed to
his last known post office address, and applies for a
hearing, such determination of the [D]epartment, with
respect to the particular facts set forth in such notice, shall
be final and compensation shall be paid or denied in
accordance therewith.
43 P.S. § 821(e) (emphasis added). Further, Section 101.82(b)(1) of the UCBR’s
Regulations provides:
The filing date will be determined as follows:
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §
802(e) (referring to willful misconduct).
2
43 P.S. § 821(e).
3
“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. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.” Turgeon v.
Unemployment Comp. Bd. of Review, 64 A.3d 729, 731 n.3 (Pa. Cmwlth. 2013).
2
(i) The date of the official United States Postal Service
[(USPS)] postmark on the envelope containing the appeal, a
[USPS] Form 3817 (Certificate of Mailing) or a [USPS]
certified mail receipt.
(ii) If there is no official [USPS] postmark, [USPS] Form
3817 or [USPS] certified mail receipt, the date of a postage
meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the
methods in subparagraph (i) or (ii), the filing date will
be the date recorded by the Department, the workforce
investment office or the [UCBR] when it receives the
appeal.
34 Pa. Code § 101.82(b)(1) (emphasis added).
Here, the Referee mailed the decision to Claimant on March 5, 2019.
The Referee’s decision specified that the final date to appeal therefrom was March
20, 2019. See Certified Record Item 12 at 1. The UCBR received Claimant’s appeal
on Thursday, March 21, 2019. Claimant testified at the remand hearing that he
mailed the appeal on the Sunday before it was due (i.e., March 17, 2019). The
envelope containing Claimant’s appeal had a barcode and no postmark.
This Court has held: “[A] barcode on an envelope was insufficient proof
of the filing date because in order to determine the mail date, a USPS representative
would be required to decode the barcode.” McKnight v. Unemployment Comp. Bd. of
Review, 99 A.3d 946, 948-49 (Pa. Cmwlth. 2014). “More important, [this Court]
must defer to the [UCBR’s] interpretation of its own regulation unless it is clearly
erroneous, and the [UCBR’s] interpretation that [Section 101.82(b)(1) of the UCBR’s
Regulations] does not contemplate testimony as adequate proof of mailing is not
clearly erroneous.” McKnight, 99 A.3d at 949 (citation omitted). Accordingly, the
filing date of Claimant’s appeal is March 21, 2019, one day after the specified
deadline.
3
[I]f an appeal is not timely filed within the specified time
period, the determination becomes final, and the [UCBR]
does not have the requisite jurisdiction to consider the
matter. Appeal periods, even at the administrative level, are
jurisdictional and may not be extended as a matter of grace
or indulgence; otherwise, there would be no finality to
judicial action. Therefore, even an appeal filed merely one
day after the expiration of the fifteen-day time period must
be dismissed as an untimely appeal.
McKnight, 99 A.3d at 949-50 (quoting Shea v. Unemployment Comp. Bd. of Review,
898 A.2d 31, 33 (Pa. Cmwlth. 2006)).
For all of the above reasons, the UCBR’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John H. Glass, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 698 C.D. 2019
Respondent :
ORDER
AND NOW, this 3rd day of December, 2019, the Unemployment
Compensation Board of Review’s May 21, 2019 order is affirmed.
___________________________
ANNE E. COVEY, Judge