R. Ware v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Regina Ware, :
Petitioner :
: No. 1796 C.D. 2017
v. :
: Submitted: May 11, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 18, 2018
Regina Ware (Claimant) petitions, pro se, for review of the November 2,
2017 order of the Unemployment Compensation Board of Review (Board), which
affirmed a referee’s decision dismissing her appeal as untimely pursuant to section
501(e) of the Unemployment Compensation Law (Law).1
On July 14, 2017, the local service center mailed Claimant a determination
denying her benefits under section 402(b) of the Law for voluntarily leaving work
without cause of a necessitous and compelling nature. 43 P.S. §802(b). The local
service center mailed the determination to Claimant’s last known post office address;
the determination was not returned by the U.S. postal authorities as undeliverable; and
1
Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e).
the determination informed Claimant that she had fifteen days, or on or before July 31,
2017, to file an appeal. Claimant was not misinformed or misled with respect to her
right to appeal or the need to appeal. On August 2, 2017, Claimant filed an untimely
appeal, and a hearing was scheduled before the referee. (Findings of Fact (F.F.) Nos.
1-6.)
Claimant was duly notified of the date, time, and place of the hearing
before the referee. However, she did not appear at the hearing or provide a reason to
the referee for her failure to do so. On July 14, 2017, the referee issued a decision
dismissing her appeal as untimely. Claimant then appealed to the Board. Claimant,
however, did not explain to the Board why she failed to attend the hearing. By order
dated November 2, 2017, the Board affirmed the dismissal of the appeal, adopting and
incorporating the referee’s findings and conclusions. (Referee’s decision at 2; Board’s
decision at 1.)
On appeal to this Court,2 Claimant does not argue that she had good cause
for missing the hearing. Instead, she contends that she is entitled to nunc pro tunc relief
and alleges that her untimely appeal from the local service center’s determination was
due to extenuating circumstances.
According to the assertions in her brief, Claimant, beginning at some point
while she was still employed, was traveling between her residence in Bethlehem,
Pennsylvania to Hillside, New Jersey, to provide care for two family members
suffering from illness. Claimant says she does not have a vehicle and did not receive
the determination until July 30, 2017, when she was able to secure a ride back to
2
Our scope of review is limited to determining whether constitutional rights have been
violated, whether an error of law has been committed, and whether findings of fact are supported by
substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d 122,
126 n.3 (Pa. Cmwlth. 2015).
2
Pennsylvania; thereafter, Claimant had to make an arrangement to borrow money in
order to fax the appeal and did not receive the money until August 1, 2017. Claimant
asserts that when she faxed the appeal, she informed the unemployment authorities to
use the New Jersey location as the address to send correspondence.
In pertinent part, section 501(e) of the Law provides that an appeal from
a local service center’s notice of eligibility determination must be filed “within fifteen
calendar days after such notice was delivered to [her] personally, or was mailed to [her]
last known post office address.” 43 P.S. §821(e). If an appeal is not filed within fifteen
days of mailing, the referee and the Board lack jurisdiction to consider the matter, and
the initial eligibility determination becomes final. Roman-Hutchinson v.
Unemployment Compensation Board of Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth.
2009); United States Postal Service v. Unemployment Compensation Board of Review,
620 A.2d 572, 573 (Pa. Cmwlth. 1993). An appeal filed even one day after the fifteen-
day appeal period is untimely and must be dismissed. Hessou v. Unemployment
Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). There is
an exception, though, and an appeal nunc pro tunc may be allowed “where a delay in
filing the appeal is caused by extraordinary circumstances involving fraud or some
breakdown in the administrative process, or non-negligent circumstances related to an
appellant or [her] counsel or a third party.” Russo v. Unemployment Compensation
Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010).
Here, Claimant’s assertions could arguably warrant a finding by the Board
that she be permitted to appeal nunc pro tunc. See Brown v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 1903 C.D. 2013, filed November
3
30, 2017) (unreported), slip op. at 4-6.3 However, consideration of this issue has been
forfeited or waived as a result of Claimant’s failure to attend the hearing and failure to
provide any explanation to either the referee or the Board that would warrant reopening
the hearing, or a remand for an additional hearing, in which she could present the
assertions that she makes in her appellant brief into evidence of record.4
In Martin v. Unemployment Compensation Board of Review (Pa. Cmwlth.,
No. 1046 C.D. 2009, filed November 17, 2009) (unreported), a pro se claimant filed
an untimely appeal from the local service center’s ineligibility determination and
claimant failed to attend the hearing. The claimant did not explain his absence before
the referee or the Board, and in the appeal to the Board, he only addressed the issue of
whether he should be permitted to appeal nunc pro tunc due to issues related with his
mail. On appeal, this Court affirmed the dismissal of a pro se claimant’s appeal as
untimely, concluding that any asserted right to a hearing was waived. Martin, slip op.
at 4; see Tri State Scientific v. Unemployment Compensation Board of Review, 589
A.2d 305, 307 (Pa. Cmwlth. 1991) (“A party who has been duly notified of a hearing
and who fails to attend that hearing after his or her continuance request has been denied
by a referee may not challenge denial of the continuance when the issue was not raised
in the notice of appeal to the Board.”); see also 34 Pa. Code §101.24 (providing the
3
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code §69.414(a), an unreported Commonwealth Court panel decision issued after January 15, 2008,
may be cited for its persuasive value, but not as binding precedent.
4
The record reflects that the notice of hearing and the decisions of the referee and the Board
were mailed to both Claimant’s Pennsylvania and New Jersey addresses, (Referee’s decision at 1, 5;
Board’s decision at 1-2), and it is therefore presumed that she received these notices. John Kenneth,
Ltd. v. Unemployment Compensation Board of Review, 444 A.2d 824, 826 (Pa. Cmwlth. 1982).
4
mechanism for a party who did not attend a scheduled hearing to submit a request to
reopen the hearing and/or obtain a remand for a hearing).
The facts of this case are indistinguishable from those in Martin. The end
result is that Claimant did not submit any competent evidence to justify her
nonappearance at the hearing and, absent such evidence or submission of a proper
excuse for failing to attend the hearing, this Court cannot conclude that the Board erred
in affirming the dismissal of the appeal as untimely. Notably, Claimant does not make
any assertions in her appellate brief to this Court addressing the fact that she failed to
attend the hearing. Even if we were to assume from the statements in her appellate
brief that Claimant could not attend the hearing on account of the family illnesses, mere
allegations are no substitute for record evidence, and this Court cannot consider factual
averments in a brief. See Pryor v. Workers’ Compensation Appeal Board (Colin
Service Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2007); Andracki v. Workmen’s
Compensation Appeal Board (Allied Eastern States Maintenance), 508 A.2d 624, 625
n.2 (Pa. Cmwlth. 1986).
Accordingly, we are constrained to affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Regina Ware, :
Petitioner :
: No. 1796 C.D. 2017
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2018, the November 2, 2017 order of
the Unemployment Compensation Board of Review is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge