D. Pitsikoulis v. UCBR

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dione Pitsikoulis, :
Petitioner :
:
v. : No. 535 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent : Submitted: September 30, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: December 19, 2022
Dione Pitsikoulis (Claimant) petitions for review, pro se, of the April 5, 2021
Order of the Unemployment Compensation Board of Review (Board) affirming the
decision of a Referee dismissing Claimant’s appeal as untimely under Section 501(e)
of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second
Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e), because she filed her
appeal more than 15 days after the Department of Labor and Industry (Department)
issued its determination.1 We affirm the Board’s Order.
1
At the time Claimant received the Department’s determination, Section 501(e) of the Law
provided:
Unless the claimant . . . files an appeal with the [B]oard, from the determination
contained in any notice required to be furnished by the [D]epartment . . . within
fifteen calendar days after such notice . . . was mailed to his last known post office
address, and applies for a hearing, such determination of the [D]epartment, with
(Footnote continued on next page…)
Background
On October 21, 2020, the Department mailed to Claimant’s last known post
office address a Notice of Determination (Notice), notifying Claimant that she was
liable for a non-fault overpayment of unemployment compensation (UC) benefits
under Section 804(b)(1) of the Law, 43 P.S. § 874(b)(1).2 Bd.’s Finding of Fact
(F.F.) Nos. 1, 2. The Notice was not returned by the postal authorities as
undeliverable. Id. No. 3.3
The Notice also informed Claimant that she had 15 days from the date of the
Notice to file an appeal if she disagreed with the determination. Id. No. 4. The last
day on which a valid appeal could be filed was November 5, 2020, but Claimant did
not file an appeal by that date. Id. Nos. 4, 5. Rather, the Department received
respect to the particular facts set forth in such notice, shall be final and
compensation shall be paid or denied in accordance therewith.
Id. We note, however, that the General Assembly extended the appeal period in Section 501(e) of
the Law from 15 days to 21 days pursuant to the Act of June 30, 2021, P.L. 173. This change took
effect on July 24, 2021.
2
Section 804(b)(1) of the Law provides in relevant part:
Any person who other than by reason of his fault has received with respect to a
benefit year any sum as compensation under this act to which he was not entitled
shall not be liable to repay such sum but shall be liable to have such sum deducted
from any future compensation payable to him with respect to such benefit year, or
the three-year period immediately following such benefit year, in accordance with
the provisions of this paragraph.
43 P.S. § 874(b)(1).
3
The Notice stated that Claimant had “received a total of $14[,]508 [in UC benefits] to
which [she was] not entitled.” Record (R.) Item No 5. The Notice further stated: “This is a non[-
]fault overpayment because[] you [were] determined [to be] ineligible [for UC benefits under]
Section 402(h) [of the Law, 43 P.S. § 802(h),] for a side[]line business and it was determined an
error.” Id. (capitalization omitted).
2
Claimant’s appeal on November 24, 2020. Id. No. 7. The envelope containing the
appeal did not include a postmark, a certified mail receipt, a Postal Form 3817, or a
postage meter mark. Id. No. 6. Claimant was neither misinformed nor misled
regarding the right of appeal or the need to appeal. Id. No. 8.
Following Claimant’s appeal, the Referee held a telephone hearing on January
12, 2021. Claimant, appearing pro se, testified on her own behalf. With regard to
the timeliness of her appeal, Claimant testified as follows:
[T]he reason why it’s so untimely, it’s not that I didn’t send it out. I’ve
been doing this whatever possible way to get in touch with
[u]nemployment since January. . . . [S]o I’m saying is the reason why
you might not have gotten it, because you didn’t get it, just like the three
other letters I sent. Why wouldn’t I send it? I’ve been fighting this
since January, or even December. So yes, I did it. . . . [I]t’s . . .
[u]nemployment’s responsibility if they didn’t receive it, or the
U[nited] S[tates] [P]ostal [Service].
Notes of Testimony (N.T.), 1/12/21, at 9. The Referee noted that the Department
received her appeal on November 24, 2020, and asked Claimant if she recalled when
she mailed her appeal. Claimant replied, “That’s what I see here. I would’ve put it
in, trust me. . . . Why would I not send in . . . my [a]ppeal?” Id. at 10. Claimant then
offered testimony regarding the merits of her underlying UC claim. Id. at 11-16.
Later in the hearing, the Referee again asked Claimant if she recalled when
she mailed her appeal. Claimant replied: “I sent it at that date, and I explained to
you I sent many letters that [were] never received, so I’m sure . . . I sent it way
before. I’m sure I sent it out as soon as I got the letter.” Id. at 17-18. She testified
further:
I didn’t wait a month to send it out. I’m sure I sent out the letter and
you didn’t receive it. . . . I can’t remember exactly, but as soon as I get
3
a letter I send it. And there ha[ve] been many, many occasions that I
sent information that they said they never received.
....
So it’s a problem. That seems to be a recurring problem with
[u]nemployent not receiving things that they are . . . ask[ing] me for.
Id. at 18.
Following the hearing, the Referee dismissed Claimant’s appeal as untimely,
concluding as follows:
[T]he copy of the envelope contained in the record [in which]
[C]laimant mailed the appeal[] does not contain a postmark, certified
mail receipt, Postal Form 3817, or postage meter mark to establish the
date of mailing. Additionally, [C]laimant was unable to provide any
credible testimony to establish the date of mailing. As such, the Referee
is constrained to conclude that [C]laimant filed the appeal late on
November 24, 2020, which was the date that the Department received
said appeal.
Ref.’s Order, 1/21/21, at 2 (emphasis added). The Referee explained that because
the timeliness provisions of the Law “are mandatory,” he had “no jurisdiction to
allow an appeal filed after the expiration of the statutory appeal period.” Id.
Claimant appealed to the Board, which adopted the Referee’s findings of fact
and conclusions of law and affirmed the Referee’s decision. The Board also made
the following additional findings and conclusions:
Claimant has failed to establish that she filed a timely appeal or
that she is entitled to an appeal nunc pro tunc. She did not recall when
she received the Department’s determination(s), and thus has not
established any type of administrative breakdown in mailing or mail
delivery. Moreover, the mailing envelope for her appeal does not
contain a legible postmark. Under the Board’s regulations, the date of
receipt is used as the date of filing in that circumstance. 34 Pa. Code §
101.82(b)(1)(iii).
4
[C]laimant also cannot shift the blame for her late filing onto the
[United States] Postal Service. Rather, in Quinn v. Unemployment
Comp[ensation] B[oard] of Review [(No. 1238 C.D. 2014, Pa.
Cmwlth., filed Jan. 23, 2015) (unreported memorandum)], the
[Commonwealth C]ourt rejected a claimant’s argument that she
“should not be penalized for the failure of postal authorities to postmark
her appeal envelope.” Similarly, in Eom v. Unemployment
Comp[ensation] B[oard] of Review [(No. 350 C.D. 2016, Pa. Cmwlth.,
filed Jan. 31, 2017) (unreported memorandum)], the [Commonwealth
C]ourt reiterated that “delivery issues with mail are foreseeable,” and
that “the failure to anticipate potential delays in the mail was not a non-
negligent circumstance that warranted nunc pro tunc relief.” The
Petition for [A]ppeal, which [C]laimant completed, also informed her
of her options to submit her appeal online or by fax. Consequently, the
Referee correctly determined that her appeal was untimely filed.
Bd.’s Order, 4/5/21, at 1 (emphasis added). Claimant now petitions this Court for
review.4
Analysis
The sole issue before this Court is whether Claimant filed a timely appeal
from the Department’s Notice, as that was the basis of both the Referee’s and the
Board’s decisions.
Preliminarily, however, we must address whether Claimant has preserved the
timeliness issue for appellate review. Although Claimant perfunctorily mentions her
late appeal in the introductory sections of her brief, she does not discuss the
timeliness issue in any detail in the body of her brief. Instead, Claimant simply
asserts that she should not have had to file an appeal in the first instance, without
providing any justification as to why she failed to appeal within the 15-day deadline.
4
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, and whether the necessary findings of fact are supported
by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
5
See Claimant’s Br. at 8 (“The[ Board] denied me for not getting the documents there
on time for an appeal that I should never have had to do.”); id. at 7 (“I should never
have had to send in an appeal had the [Department] d[one] its job properly.”).
Claimant does not explain why her appeal was filed late, nor does she argue any
applicable exception. Because Claimant fails to address or develop any argument
on the only issue before this Court, we conclude that she has waived the issue. See
Ruiz v. Unemployment Comp. Bd. of Rev., 911 A.2d 600, 605 n.5 (Pa. Cmwlth. 2006)
(“When issues are not properly raised and developed in a brief, or when the brief is
inadequate or defective because an issue is not adequately developed, this Court will
not consider the merits of the issue.”); Rapid Pallet v. Unemployment Comp. Bd. of
Rev., 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (“Arguments not properly developed
in a brief will be deemed waived by this Court.”); Pa.R.A.P. 2119(a).
Even if Claimant had not waived the timeliness issue, however, we would
nonetheless conclude that the Board properly dismissed her appeal. It is well settled
that the failure to file a timely appeal is a jurisdictional defect and the 15-day appeal
period may not be extended as a matter of grace or indulgence. Russo v.
Unemployment Comp. Bd. of Rev., 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). To
justify a late appeal, the claimant bears “an extremely heavy burden” to demonstrate
that the delay resulted from extraordinary circumstances involving fraud, a
breakdown in the administrative process, or non-negligent circumstances beyond the
claimant’s control. Carney v. Unemployment Comp. Bd. of Rev., 181 A.3d 1286,
1288 (Pa. Cmwlth. 2018).
Moreover, with regard to appeals filed by mail, the Board’s regulations
provide, in pertinent part:
A party may file a written appeal by any of the following methods:
6
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official United States Postal Service postmark
on the envelope containing the appeal, a United States Postal
Service Form 3817 (Certificate of Mailing) or a United States
Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark,
United States Postal Service Form 3817 or United States Postal
Service 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 Board when it receives the appeal.
34 Pa. Code § 101.82(b)(1) (emphasis added).
Here, the Department’s Notice informed Claimant that she had 15 days from
the date of that determination, or until November 5, 2020, to file a timely appeal, but
Claimant did not file an appeal by that date. Bd.’s F.F. Nos. 3-5. The Department
did not receive Claimant’s appeal until November 24, 2020. Id. No. 7; R. Item No.
7. The envelope containing Claimant’s appeal did not bear a legible postage meter
mark, nor did the appeal include a certified mail receipt or a Postal Form 3817. Bd.’s
F.F. No. 6; R. Item No. 7. Under these circumstances, and pursuant to the Board’s
regulations, the Department correctly deemed the filing date as the date it received
Claimant’s appeal, which was 19 days beyond the appeal deadline. See 34 Pa. Code
§ 101.82(b)(1)(iii).
At the hearing, Claimant testified only that she was “sure” she mailed the
appeal “way before” November 24, 2020 and that any delay in receipt was the fault
of either the Department or the United States Postal Service. N.T., 1/12/21, at 17-
7
18. However, the Board specifically rejected her testimony on this issue, finding
that “[C]laimant was unable to provide any credible testimony to establish the date
of mailing.” Ref.’s Order, 1/12/21, at 2; Bd.’s Order, 4/5/21, at 1; see Stana v.
Unemployment Comp. Bd. of Rev., 791 A.2d 1269, 1271 n.6 (“The [Board] is the
ultimate fact-finding body, empowered to resolve conflicts in evidence, and to assess
the credibility of witnesses.”). The Board also found, based on the evidence of
record, that Claimant was neither misinformed nor misled regarding the right of
appeal or the need to appeal. Bd.’s F.F. No. 8. Therefore, we conclude that the
Board properly dismissed Claimant’s appeal as untimely under Section 501(e) of the
Law.
Conclusion
In sum, we conclude that: (1) Claimant’s appeal was untimely filed, and (2)
she failed to credibly demonstrate that her delay was caused by extraordinary
circumstances involving fraud, a breakdown in the administrative process, or non-
negligent circumstances. Accordingly, we affirm the Board’s Order.
____________________________
ELLEN CEISLER, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dione Pitsikoulis, :
Petitioner :
:
v. : No. 535 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 19th day of December, 2022, the Order of the Unemployment
Compensation Board of Review, dated April 5, 2021, is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge