Derry Street Pub, Inc. d/b/a The Cafe v. Com. of PA, Dept. of L&I, OUCTS

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derry Street Pub, Inc. d/b/a The Cafe, :
Petitioner :
:
v. : No. 332 C.D. 2021
: Submitted: October 29, 2021
Commonwealth of Pennsylvania, :
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 12, 2022
Derry Street Pub, Inc. d/b/a The Cafe (Derry Street) petitions for review of
the March 1, 2021 Order of the Department of Labor and Industry (Department),
Office of Unemployment Compensation Tax Services (OUCTS), which dismissed
Derry Street’s Petition for Reassessment (Petition) as untimely under Section 304(b)
of the Unemployment Compensation (UC) Law (Law), Act of December 5, 1936,
Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 784(b).1 We affirm.
1
Section 304(b) of the Law states:
Any employer against whom an assessment is made may, within fifteen days after
notice thereof, petition the [D]epartment for a re-assessment which petition shall
be under oath and shall set forth therein specifically and in detail the grounds and
reasons upon which it is claimed that the assessment is erroneous. Hearing or
hearings on said petition shall be held by the [D]epartment at such places and at
(Footnote continued on next page…)
Background
On August 1, 2019, the Department mailed a Notice of Assessment (Notice)
to Derry Street’s last known mailing address of record: 2312 Derry Street,
Harrisburg, Pennsylvania, 17104. The Notice informed Derry Street that the
Department had assessed $22,608.91 in unemployment compensation (UC)
contributions, interest, and/or penalties against it pursuant to Section 304(a)(1) of
the Law, 43 P.S. § 784(a)(1).2 The Notice also stated:
If you disagree with this assessment, you may file a petition for
reassessment WITHIN FIFTEEN (15) DAYS after the date of this
notice. THIS ASSESSMENT WILL BECOME CONCLUSIVE AND
BINDING UNLESS YOU FILE A TIMELY PETITION FOR
REASSESSMENT.
Record (R.) Item No. 1, App. B (capitalization in original). The Notice stated that
the last day to file a timely petition for reassessment was August 16, 2019. Id.
such times as may be determined by rules and regulations of the [D]epartment and
due notice of the time and place of such hearing given to such petitioner.
43 P.S. § 784(b).
2
Section 304(a)(1) of the Law states:
If any employer fails within the time prescribed by the [D]epartment to file any
report necessary to enable the [D]epartment to determine the amount of any
contribution owing by such employer, the [D]epartment may make an assessment
of contributions against such employer of such amount of contributions for which
the [D]epartment believes such employer to be liable, together with interest thereon
as provided in this act.
43 P.S. § 784(a)(1).
2
On September 30, 2019, Derry Street, through its designated Power of
Attorney, Elaine M. Davis,3 filed its Petition and supporting documentary evidence.
In its Petition, Derry Street asserted that although it had filed the Petition beyond the
15-day statutory deadline, its late filing was due to non-negligent circumstances
beyond its control and/or an administrative breakdown. Specifically, Derry Street
asserted that the executed Power of Attorney form, together with Ms. Davis’s email
communications with the Tax Agent in the weeks preceding the filing of the Petition,
established that OUCTS incorrectly mailed the Notice to Derry Street rather than to
Ms. Davis. Derry Street averred:
[Ms. Davis] was in contact with the [Tax Agent] since June 20,
2019 in an effort to discuss the [OUCTS] audit and determine if an
assessment had been filed. The [Tax Agent] responded that he would
like to discuss the case, but was going on vacation and gave an
approximate time for [Ms. Davis] to send him the Power of Attorney
[form] and discuss the case. [Ms. Davis] did so repeatedly, both by
e[]mail and telephone voicemails, but the [Tax Agent] did not respond.
[Ms. Davis] has communicated in other cases with the [Tax Agent] and
never had a problem with non-responsiveness. The e[]mails sent to the
[Tax Agent] were not returned as undeliverable and [Ms. Davis] was
receiving e[]mails from other clients without issue.
....
. . . [Ms. Davis] made the [Tax Agent] duly aware on July 17,
2019 of her representation [of Derry Street], sent the Power of Attorney
[form], and requested the status of the case. Had the [Tax Agent]
responded or at least sent a copy of the [Notice] via e[]mail to [Ms.
Davis], the appeal would have been timely filed.
R. Item No. 1.
3
On July 17, 2019, Ms. Davis emailed to UC tax agent Brian Olimpi (Tax Agent) an
executed Power of Attorney form, whereby Derry Street appointed Ms. Davis as its tax
representative with the power and authority to act on its behalf. See R. Item No. 1, Apps. A & C.
3
On February 14, 2020, the Department notified the parties that the timeliness
of Derry Street’s Petition was at issue and directed them to exchange exhibits by
May 22, 2020.
On February 28, 2020, OUCTS filed a Motion to Dismiss the Petition (Motion
to Dismiss), asserting that the Petition was untimely. Derry Street filed a response
to the Motion to Dismiss on March 13, 2020. The Department stayed the parties’
exhibit exchange until resolution of the Motion to Dismiss.
On March 1, 2021, the Department granted the Motion to Dismiss, concluding
that Derry Street failed to justify its untimely filing. The Department concluded:
[Derry Street] represents [that] the delay between OUCTS
mailing the [Notice] to [Derry Street] and [Ms. Davis] receiving the
[Notice] was due to several factors, including that [Derry Street’s]
owner “does not work or reside at the Derry Street Pub” and “was out
of the country[,] immediately followed by [Ms. Davis’s] vacation the
second full week of August until August 16, 2019.” [Derry Street]
expresses that once it did receive the [Notice], it was unable to
successfully send it to [Ms. Davis] through e[]mail and then waited
until the conclusion of [her] vacation to provide the [Notice] to her.
....
Misleading information provided by an agency staff member
regarding appeal filing requirements may constitute an administrative
breakdown and warrant nunc pro tunc treatment for the appeal belatedly
filed based on such inaccurate information; however, we find the [UC
Tax Agent’s] comments to Ms. Davis fall short of establishing
misleading or fraudulent conduct by OUCTS or a breakdown in agency
operations [that] prevented [Derry Street] from filing a timely appeal,
for the following reasons.
[The Tax Agent] communicated, by e[]mail dated June 21, 2019,
that he would talk to [Ms. Davis] “in July,” and also notified [her] that
an assessment would[ not] be generated “until the middle of July.” [The
Tax Agent’s] failure to contact [Ms. Davis] in July should have alerted
4
[Ms. Davis] not to rely on a response from [the Tax Agent] prior to the
issuance of an assessment. [Ms. Davis] was already notified that an
assessment would be issued, and that [Derry Street] could expect [it] at
some point after mid-July. The [Notice] was issued August 1, 2019,
which is after the time period indicated. Additionally, [Derry Street’s
owner’s] vacation and [his] subsequent technical difficulties in
forwarding the [Notice] to [Ms. Davis] are not compelling reasons to
be late.
Dep’t Order, 3/1/21, at 4-6 (footnotes omitted) (emphasis added). Therefore, the
Department dismissed the Petition as untimely. Derry Street now petitions this
Court for review.4
Analysis
On appeal, Derry Street asserts that the Department erred in dismissing its
Petition because OUCTS failed to mail the Notice to Ms. Davis, despite its
knowledge of her representation of Derry Street. Derry Street also argues that the
Tax Agent misled Ms. Davis regarding the issuance of the Notice, which amounted
to an administrative breakdown. We disagree with both contentions.
Section 304 of the Law sets forth the procedures governing UC tax
assessments and the time period for challenging an assessment. Section 304(a)(3)
of the Law provides that “[t]he [D]epartment will mail notice of an assessment to
the employer’s last known address” and that “[n]otice of an assessment by mail is
complete upon mailing.” 43 P.S. § 784(a)(3) (emphasis added). Section 304(b) of
the Law provides that “[a]ny employer against whom an assessment is made may,
within fifteen days after notice thereof, petition the [D]epartment for a reassessment
. . . .” 43 P.S. § 784(b).
4
Our review is limited to determining whether the necessary factual findings are supported
by substantial evidence, whether the Department committed an error of law, or whether the
petitioner’s constitutional rights have been violated. Section 704 of the Administrative Agency
Law, 2 Pa. C.S. § 704.
5
Here, Derry Street does not dispute that its last known mailing address is
Derry Street Pub, Inc., The Cafe, 2312 Derry Street, Harrisburg, Pennsylvania,
17104, nor does it dispute that OUCTS sent the Notice via first-class mail to that
address on August 1, 2019. It is also undisputed that the Notice was not returned to
OUCTS as undeliverable. Therefore, OUCTS satisfied the notice requirement of
Section 304(a)(3) of the Law by mailing the Notice to Derry Street’s last known
mailing address on August 1, 2019.
Derry Street did not file its Petition until September 30, 2019, 45 days beyond
the 15-day deadline for seeking reassessment under Section 304(b) of the Law.
Derry Street asserts, however, that it has established circumstances warranting nunc
pro tunc consideration of its untimely Petition.
Our Court has explained:
Limited circumstances exist in which an untimely [petition for
reassessment] may be considered. Nunc pro tunc relief is a form of
equitable relief that is available only “in certain extraordinary
circumstances.” Allowable exceptions include cases involving fraud, a
breakdown in the administrative process, or when there is a “non-
negligent failure to file a timely appeal which was corrected within a
very short time, during which any prejudice to the other side of the
controversy would necessarily be minimal.”
Best Courier v. Dep’t of Lab. & Indus., Off. of Unemployment Comp. Tax Servs.,
220 A.3d 696, 700 (Pa. Cmwlth. 2019) (internal citations omitted); see also
FREMCO Assocs., LLC v. Dep’t of Revenue of PA Unemployment Comp. Audit Div.,
257 A.3d 794, 803 (Pa. Cmwlth. 2021) (recognizing that “the equitable principles of
the nunc pro tunc doctrine may be applicable [to an untimely petition for
6
reassessment] even though the word ‘appeal’ does not appear in Section 3[04](b) of
the Law”).5
Derry Street first seeks to invoke the exception for non-negligent
circumstances, asserting that OUCTS incorrectly mailed the Notice to Derry Street
rather than to Ms. Davis pursuant to the executed Power of Attorney form. The
record belies this claim.
Derry Street, through its owner, Sukhvinder Longia, executed a Power of
Attorney form on July 17, 2019. The Power of Attorney form appointed Ms. Davis
as Derry Street’s attorney-in-fact and gave her the power and authority to act on its
behalf in matters before OUCTS.6 In completing the form, Mr. Longia checked the
box next to paragraph 1, which expressly authorized Ms. Davis to represent Derry
Street “in any matter(s) relating to [its] liability for [UC] contributions.” R. Item
No. 1, App. A. However, Mr. Longia did not check the box next to paragraph 1(A),
which stated:
5
In FREMCO, this Court recently held that the 15-day deadline in Section 304(b) of the
Law is a non-jurisdictional time limitation that “cannot be presumed” to deprive the Department
of jurisdiction over an untimely petition for reassessment. 257 A.3d at 801. We observed that
Section 304(b) uses the directory phrase “may petition,” not the mandatory phrase “shall be filed,”
and does not state the consequence of filing a petition beyond the 15-day period. Id. at 802-03.
We also noted that “precedent demonstrates that the Department has treated the statutory time
constraint in Section 304(b) of the Law as a statute of limitations and not a jurisdictional bar.” Id.
at 803. Nonetheless, this Court held that “[w]hether the Department should allow [an untimely]
petition for re[]assessment to proceed, given this statutory deadline, is a matter for the Secretary
of [the Department] to decide.” Id. at 801. In that instance, “the equitable principles of the nunc
pro tunc doctrine may be applicable even though the word ‘appeal’ does not appear in Section
3[04](b) of the Law.” Id. Here, the Department’s Executive Deputy Secretary applied these
equitable principles and determined, based on his review of the record, that Derry Street failed to
establish its entitlement to nunc pro tunc relief. See Dep’t Order, 3/1/21, at 6-7.
6
The Department’s regulations permit an employer to “appoint an agent with full or limited
power and authority to act on its behalf with the Department.” 34 Pa. Code § 63.66(a).
7
Also, I authorize [OUCTS] to change my mailing address in its records
to the address of said attorney-in-fact. (This will result in mailings of
quarterly UC tax returns, tax rate notices, and miscellaneous tax
notices, including deficiency notices, to be sent to the attorney-in-fact.)
Id. (emphasis added). By not checking the box next to paragraph 1(A), Derry Street
declined to authorize OUCTS to mail notices directly to Ms. Davis rather than to
Derry Street’s mailing address of record. Indeed, Derry Street acknowledges that,
when preparing power of attorney forms, Ms. Davis “never selects the option for
OUCTS to mail correspondence to her” because “the amount of mail would be
overwhelming if she were to select the box to receive [her] clients’ mailings.” Derry
Street Br. at 7-8; see R. Item No. 7.
Here, OUCTS mailed the Notice to Derry Street’s last known mailing address
of record – 2312 Derry Street, Harrisburg, Pennsylvania, 17104 – as required by
Section 304(a)(3) of the Law and as directed by the executed Power of Attorney
form. Contrary to Derry Street’s contention on appeal, the fact that its owner neither
works or resides at that address is irrelevant. Therefore, we conclude that OUCTS
properly mailed the Notice to Derry Street’s last known mailing address rather than
to Ms. Davis.
Next, Derry Street asserts that its delay in filing the Petition was caused by
the Tax Agent’s misrepresentations regarding the status of the assessment and his
failure to respond to Ms. Davis’s emails and telephone calls, which amounted to an
administrative breakdown. Derry Street contends that after being notified of Ms.
Davis’s representation of Derry Street, the Tax Agent did not respond to any of her
emails or telephone calls after June 21, 2019, and Ms. Davis was erroneously led to
believe she would hear from the Tax Agent before an assessment was issued.
To establish an administrative breakdown, Derry Street must demonstrate that
OUCTS “‘engaged in fraudulent behavior or manifestly wrongful or negligent
8
conduct’ or that ‘non-negligent conduct beyond [Derry Street’s] control caused the
delay.’” Lopresti v. Unemployment Comp. Bd. of Rev., 55 A.3d 561, 563 (Pa.
Cmwlth. 2012) (citation omitted). A breakdown in the administrative process occurs
when “an administrative body acts negligently, improperly or in a misleading way.”
Union Elec. Corp. v. Bd. of Prop. Assessment, Appeals & Rev., 746 A.2d 581, 584
(Pa. 2000).
The record shows that on June 20, 2019, Ms. Davis sent an email to the Tax
Agent inquiring about the status of Derry’s Street’s audit. The Tax Agent replied on
June 21, 2019, stating:
No assessment has been generated yet and it won’t be until the middle
of July because I’m going to be in Ireland for 9 days and then Italy for
another 9 [days] so you have till about July 15th. I don’t have a lot of
time to discuss it right now because I have some things to wrap up
before I go[,] but here are the basic issues in a nutshell[] . . . .
....
. . . If you do take the case let me know and I’ll talk to you in July.
R. Item No. 1, App. C (emphasis added).
Ms. Davis emailed the Tax Agent again on July 17, 2019 and attached a copy
of the executed Power of Attorney form. In that email, Ms. Davis informed the Tax
Agent that she had met with Derry Street’s owner, Mr. Longia, and was “taking the
case.” Id. Ms. Davis further stated: “Before you issue the assessment, unless you
have already, I’d like to talk to you about the case, if you’re willing.” Id. (emphasis
added). The Tax Agent did not respond to this email. Subsequent to this email, Ms.
Davis called the Tax Agent and left him a voicemail message, but he did not return
her call.
9
Based on our review of the record, we cannot conclude that the Tax Agent
fraudulently or negligently misled Ms. Davis with regard to the issuance of the
Notice. The Tax Agent stated on June 21, 2019, that he was leaving soon for
vacation, that he would talk to Ms. Davis “in July,” and that an assessment would
not be issued “until the middle of July.” R. Item No. 1, App. B. In its appellate
brief, Derry Street claims that, based on the Tax Agent’s June 21, 2019 email, Ms.
“Davis was led to believe that the [Tax Agent] would discuss the audit status and
apprise her when any assessment would be filed.” Derry Street Br. at 8. However,
Ms. Davis’s July 17, 2019 email to the Tax Agent demonstrates that she understood
that the Notice might have already been issued, without such a prior discussion. See
R. Item No. 1, App. C (“Before you issue the assessment, unless you have already,
I’d like to talk to you about the case, if you’re willing.”) (emphasis added). We agree
with the Department that the Tax Agent’s “failure to contact [Ms. Davis] in July
should have alerted [Ms. Davis] not to rely on a response from [the Tax Agent] prior
to the issuance of an assessment.” Dep’t Order, 3/1/21, at 6. Therefore, we conclude
that Derry Street failed to establish that the Tax Agent fraudulently or negligently
misled Ms. Davis.
Moreover, Derry Street offers no explanation as to why it did not monitor its
mail at its business address after being notified that an assessment notice was
forthcoming as early as mid-July. The record shows that on August 8, 2019 (one
week after the Notice was mailed and within the 15-day petition deadline), Ms. Davis
emailed Mr. Longia, informing him: “I anticipate hearing something soon.
Hopefully, we can resolve this without having to appeal an assessment.” R. Item
No. 1, App. D (emphasis added). Importantly, this email included Ms. Davis’s July
17, 2019 email to the Tax Agent, wherein she stated, “Before you issue the
10
assessment, unless you have already, I’d like to talk about the case, if you’re
willing.” Id. (emphasis added). As such, Mr. Longia was aware, as of August 8,
2019, that the Notice may have already been mailed or would be mailed soon, yet
he failed to either check the mail at Derry Street’s business address or arrange for
someone else to do so. In fact, in its appellate brief, Derry Street admits that Mr.
Longia did not check Derry Street’s mail for the Notice until weeks later, after he
returned from vacation:
It was not until [Mr. Longia] returned from vacation abroad and [Ms.]
Davis made additional inquiries . . . in the absence of communication
from the [Tax Agent] that [Derry Street] discovered that there could be
a problem. [Mr. Longia], who neither lived nor worked at the address
to which the [Notice] was sent, immediately attempted to locate any
mail received by the Derry Street Pub d/b/a The Cafe, and finally
discovered the [Notice,] which [he] forwarded to [Ms.] Davis.
Derry Street Br. at 17; see also R. Item No. 1, App. E (wherein Ms. Davis stated in
a September 19, 2019 email to the Tax Agent: “I was on vacation last week and the
Friday before that, [and I] got a call from Mr. Longia that he received something and
was either going to fax or scan/e[]mail it to me. He said his son did so, but I didn’t
get anything.”).
This Court has “consistently found [UC] petitioners negligent [for] not
making other arrangements for their mail while they were away.” Best Courier, 220
A.3d at 701 (citing cases). When a UC petitioner fails to monitor his or her mail,
the petitioner “assume[s] the risk that time-sensitive matters would be received
during th[o]se periods of absence.” Id. at 702.
In this case, Ms. Davis was notified that Derry Street could expect to receive
an assessment notice as early as mid-July. On August 1, 2019, the Department
mailed the Notice to Derry Street’s last known mailing address – 2312 Derry Street,
11
Harrisburg, Pennsylvania, 17104 – as required by Section 304(a)(3) of the Law and
as directed by the Power of Attorney form. See R. Item No. 1, App. A. Once placed
on notice that an assessment was forthcoming, it was Derry Street’s responsibility
to ensure that the mail at that address was being monitored during the relevant time
frame. See Best Courier, 220 A.3d at 701 (“[The employer] acknowledges . . . that
its office [to which the assessment notice was mailed] is not staffed on a daily basis;
yet it did nothing to ensure mail was received in a timely manner. We have refused
to allow nunc pro tunc relief under similar circumstances in the past.”). As the
Department properly determined, Ms. Davis’s and Mr. Longia’s vacations and Mr.
Longia’s “subsequent technical difficulties in forwarding the [Notice] to [Ms. Davis]
are not compelling reasons to be late.” Dep’t Order, 3/1/21, at 6. Therefore, we
conclude that Derry Street’s delay in filing the Petition was the result of its own
negligence.
Conclusion
Accordingly, because Derry Street failed to satisfy its burden of proving that
it is entitled to nunc pro tunc relief, we affirm the Department’s Order.
__________________________________
ELLEN CEISLER, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derry Street Pub, Inc. d/b/a The Cafe, :
Petitioner :
:
v. : No. 332 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
ORDER
AND NOW, this 12th day of April, 2022, we hereby AFFIRM the March 1,
2021 Order of the Department of Labor and Industry, Office of Unemployment
Compensation Tax Services.
__________________________________
ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derry Street Pub, Inc. :
d/b/a The Cafe, :
Petitioner :
:
v. : No. 332 C.D. 2021
: Submitted: October 29, 2021
Commonwealth of Pennsylvania, :
Department of Labor and Industry, :
Office of Unemployment :
Compensation Tax Services, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: April 12, 2022
I respectfully dissent from the Majority’s conclusion that the petition
for reassessment (Petition) filed by Derry Street Pub, Inc. d/b/a The Cafe (Derry
Street) was properly dismissed as untimely filed by the Department of Labor and
Industry (Department), Office of Unemployment Compensation Tax Services
(OUCTS). In my view, Derry Street—at the very least—is entitled to a hearing to
determine whether it should be afforded nunc pro tunc relief.
As alleged by Derry Street in its Petition, and as corroborated by
attached documentary evidence, Derry Street’s representative, Elaine M. Davis
(Davis), received what she identified as “assessment documents” from the
PAM -1
Department that were dated June 11, 2019. Shortly thereafter, on June 20, 2019,
Davis emailed a tax agent from the Department (Tax Agent) and, on the next day,
the Tax Agent replied via email. In that correspondence, the Tax Agent informed
Davis that “[n]o assessment has been generated yet and it won’t be until the middle
of July,” and instructed Davis that “[if] you [i.e., Davis] do take the case let me know
and I’ll talk to you in July.” (Dismissal Order at 3.) Then, by email dated July 17,
2019, Davis advised the Tax Agent that she was taking the case, included a signed
and notarized Pennsylvania Unemployment Compensation Power of Attorney Form
UC-844 (Power of Attorney), and told the Tax Agent that, in the event an assessment
had not yet been issued, she would “like to talk about the case.” Id. Subsequently,
the Tax Agent never responded to Davis, and, on August 1, 2019, OUCTS mailed
an assessment (Assessment) to Derry Street, whose owner does not reside or work
at Derry Street and was out of town during this time. Notably, Davis asserts that, in
her prior dealings with tax agents from the Department, the tax agents had always
mailed her copies of an assessment where, as here, a power of attorney had been
filed. Id. at 3-6.
Based on these averments, Derry Street contends that its Power of
Attorney, Davis, reasonably relied on the representations of the Tax Agent that he
would discuss the case with her before the Assessment would be issued and the prior
course of conduct undertaken by the Department’s tax agents in mailing her an
assessment. In essence, Derry Street maintains that the Department’s misleading
information and the failure of Davis to receive a copy of the Assessment constituted
a breakdown in the administrative process that accounts for the delay in filing the
Petition.
PAM -2
It is now well settled that an appeal nunc pro tunc may be allowed
where the delay in filing the appeal was caused by extraordinary circumstances
involving a breakdown in the administrative process. Cook v. Unemployment
Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996); see Russo v.
Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth.
2010). In cases where a claimant/petitioner is “unintentionally misled by an official
who is authorized to act in the premises, the time [for appeal] may also be extended
when it is possible to relieve an innocent party of injury consequent on such
misleading act.” Flynn v. Unemployment Compensation Board of Review, 159 A.2d
579 (Pa. Super. 1960); see Stana v. Unemployment Compensation Board of Review,
791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). Further, “where an administrative body
acts negligently, improperly or in a misleading way, an appeal nunc pro tunc may
be warranted.” Union Electric Corporation v. Board of Property Assessment,
Appeals & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000). As we have
observed: “Inadequate notice is exactly the type of breakdown in the administrative
process that satisfies the standard for a nunc pro tunc appeal.” Beaver County
Children & Youth Services v. Department of Public Welfare, 68 A.3d 44, 48 (Pa.
Cmwlth. 2013).
Given the allegations as set forth above, which must be accepted as true
at this stage of the proceedings, I find merit in Derry Street’s argument that nunc pro
tunc relief may be warranted. In sum, if credited by a fact-finder after a hearing, the
evidence in support of the averments could effectively show that Davis was misled
into believing that a Tax Agent would speak with her prior to the issuance of the
Assessment and that Davis would, as part of the customary practice adopted by the
Department’s tax agents, personally receive the Assessment electronically or
PAM -3
through the mail. In substantially similar circumstances, this Court has found that a
claimant/ petitioner is entitled to nunc pro tunc relief. For example, in West Greene
School District v. Unemployment Compensation Board of Review, 535 A.2d 697 (Pa.
Cmwlth. 1988), this Court determined that nunc pro tunc relief was suitable where
the claimant “was mistakenly told by an [unemployment compensation] intake
worker that the appeal could wait.” Id. at 699. More importantly, in Nixon v. Nixon,
198 A. 154 (Pa. 1938), and Purdy’s Estate, 291 A.2d 93 (Pa. 1972), our Supreme
Court held that the failure of a court official to send notice of a court order to a
party’s attorney, where the mailing of such notice was an unofficial, but customary
practice of the court office/prothonotary, evidenced a circumstance worthy of nunc
pro tunc relief. See Nixon, 198 A. at 158 (“Despite the fact there is no statute or
written rule of court requiring the prothonotary of the [court] to issue notices when
orders have been entered, we understand that he has customarily assumed such a
duty. . . . Under the circumstances [the attorney] [was] entitled to expect this notice. .
. . [The] attorney[] was lulled into security by this practice, and his failure to receive
such notice is sufficient reason for us to hold that [the] appellant should be permitted
an appeal. To hold otherwise would work a grave injustice.”); accord Purdy’s
Estate, 291 A.2d at 94.
Accordingly, for the above-stated reasons, I would vacate the order of
the Department and remand with instructions that the Department convene a hearing
as to whether Derry Street is entitled to nunc pro tunc relief and issue factual findings
and conclusions of law with regard to that issue.1
1
In reaching a contrary conclusion, the Majority places much weight on the fact that Derry
Street’s owner failed to check the box on the Power of Attorney Form that would have changed
his address to the address of Davis, which, ultimately, would have resulted in “mailings of
quarterly [Unemployment Compensation (UC)] tax returns, tax rate notices, and miscellaneous tax
(Footnote continued on next page…)
PAM -4
Hence, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
notices, including deficiency notices, [being] sent to [Davis].” (Reproduced Record (R.R.) at 18a.)
See Maj. slip op. at 7-8, 11-12. However, I do not see how this fact alters or otherwise undermines
the fact that, if the evidence was found to be credible after a hearing, the Department could
determine that Davis reasonably relied on the past practice of the Department’s tax agents in
mailing notices to a power of attorney who does not check this particular box, and that the failure
of her to personally receive the Assessment, in and of itself, is sufficient to warrant nunc pro tunc
relief. Moreover, as the Majority acknowledges, Davis “never selects the option for OUCTS to
mail correspondence to her” because “the amount of mail would be overwhelming if she were [sic]
to select the box to receive [her] clients’ mailings.” Maj. slip op. at 8 (internal citations omitted).
Indeed, given the numerous filings that would be sent to a power of attorney if the box mentioned
above was checked, I believe that an individual who simply signed the Power of Attorney form,
vesting another individual “with full power and authority to represent [him/her] before, and act on
[his/her] behalf . . . in any matter(s) relating to [his/her] liability for unemployment compensation
contributions,” R.R. at 18a, could reasonably believe that the power of attorney would receive all
notices and assessments, especially in circumstances where, as here, the form was signed with
regard to one specific case and/or assessment.
PAM -5