Opinion
No. 1366 C.D. 2011
07-20-2012
Jaclyn J. Bereznak, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Jaclyn J. Bereznak (Claimant) petitions for review of an order of the Unemployment Compensation Board of Review (Board). The Board dismissed Claimant's appeal as untimely pursuant to Section 502 of the Unemployment Compensation Law (Law). We now vacate the Board's order and remand for further proceedings.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 822. Section 502 of the Law provides:
Where an appeal from the determination or revised determination, as the case may be, of the department is taken, a referee shall, after affording the parties and the department reasonable opportunity for a fair hearing, affirm, modify, or reverse such findings of fact and the determination or revised determination, as the case may be, of the department as to him shall appear just and proper. The parties and their attorneys or other representatives of record and the department shall be duly notified of the time and place of a referee's hearing and of the referee's decision, and the reasons therefor, which shall be deemed the final decision of the board, unless an appeal is filed therefrom, within fifteen days after the date of such decision the board acts on its own motion, to review the decision of the referee. A memorandum of testimony of any hearing before any referee shall be made and be preserved for a period of ninety days following expiration of the period for filing an appeal from the final decision rendered in the case.The fifteen-day time limit is mandatory and subject to strict application. Renda v. Unemployment Comp. Bd. of Review, 837 A.2d 685, 695 (Pa. Cmwlth. 2003), appeal denied, 581 Pa. 686, 863 A.2d 1151 (2004). Failure to appeal timely from an administrative agency's action is a jurisdictional defect, and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Sofronski v. Civil Serv. Comm'n, City of Philadelphia, 695 A.2d 921, 924 (Pa. Cmwlth. 1997). Thus, a petitioner carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). As a result, an appeal nunc pro tunc may be allowed only where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counselor, or a third party. Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, 671 A.2d 1130 (1996).
On November 21, 2010, Claimant filed a claim for unemployment compensation benefits based upon the termination of her full-time employment with BNY Mellon, and on January 25, 2011, the Duquesne UC Service Center (Service Center) issued a notice of determination, finding Claimant to be eligible for benefits. Claimant asserts that on January 5 and 6, 2011, she worked on a one-time promotional event for five (5) hours each day for Fusion Marketing & Promotions (Fusion), and she reported those earnings to the Service Center. Apparently, after Claimant reported her earnings from Fusion to the Unemployment Compensation authorities, the Department of Labor and Industry, Bureau of UC Benefits and Allowances, sent a questionnaire to Fusion, requesting information regarding Claimant's eligibility for benefits, to which Fusion responded in writing. (C.R., Item No. 3.) It is unclear from the record whether the Bureau of Unemployment Compensation Benefits sent a similar form to Claimant or attempted to contact her via telephone, because the "Claimant Questionnaire" contained in the record is devoid of any specific information relative to this matter. Thereafter, the Service Center issued a notice of determination (Fusion NOD), wherein the Service Center determined that Claimant was not ineligible for unemployment compensation benefits under Section 402(h) of the Law, because she was not self-employed as to her work for Fusion. (C.R., Item No. 4.) Thus, the Fusion NOD provided that Claimant was entitled to benefits beginning with the compensation week ending January 8, 2011.
The Claimant Questionnaire contains only printed (not hand-written) information concerning Claimant's name and social security number and Fusion's name, address, and telephone number in response to a question relating to employment information. (C.R., Item No. 2.) The form contains sixty-nine (69) questions, most of which require a "yes or no" answer, but none of the questions (other than number 2) have answers. Although this form has a place for the name of the UC representative who took Claimant's statement, no name is listed but a printed (not hand-written) entry indicates that the statement was taken by telephone on January 21, 2011. A hand-written note at the bottom of the same page indicates that the "date of written attempt" was "11/21" (November 21, 2010), a date which precedes Claimant's two (2) days of employment with Fusion in January 2011.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(h). Section 402(h) of the Law provides that an employee shall be ineligible for compensation for any week:
In which he is engaged in self-employment: Provided, however, That an employe who is able and available for full-time work shall be deemed not engaged in self-employment by reason of continued participation without substantial change during a period of unemployment in any activity including farming operations undertaken while customarily employed by an employer in full-time work whether or not such work is in "employment" as defined in this act and continued subsequent to separation from such work when such activity is not engaged in as a primary source of livelihood. Net earnings received by the employe with respect to such activity shall be deemed remuneration paid or payable with respect to such period as shall be determined by rules and regulations of the department.
Fusion submitted a timely appeal of the Fusion NOD on February 10, 2011, asserting that Claimant was a subcontractor, rather than an employee, and also asserting that Claimant had earned only $140 from Fusion for work she performed for Fusion between January 6 and 7, 2011. (C.R., Item No. 5.) The Board assigned Fusion's appeal to a Referee, who issued a notice of hearing for March 8, 2011. Claimant did not appear during the Referee's March 8, 2011 hearing.
It is unclear whether Claimant performed work on January 5 and 6, 2011, or January 6 and 7, 2011, but such discrepancy is irrelevant for purposes of our review.
The certified record indicates that the Referee conducted a hearing on March 8, 2011, but that there is "no transcript due to untimely appeal." (C.R., Item No. 9.)
By decision dated March 10, 2011, the Referee issued findings of fact and conclusions of law. The Referee determined that Claimant was ineligible for unemployment compensation benefits under Section 402(h) of the Law. The Referee reasoned that although some sideline activities may operate as an exception to the independent contractor exclusion contained in Section 402(h) of the Law, Claimant bore the burden to establish such an exception to the rule, but, because she failed to appear at the hearing, there was no evidence supporting that position. The Referee's decision indicated that the last day to file an appeal from the decision with the Board was March 25, 2011.
Claimant filed an untimely appeal of the March 10, 2011 decision on April 6, 2011, asserting that she
[d]isagree[s] with determination of nofault overpayment. Benefits are for separating employer, BNY Mellon. Never applied for benefits from Fusion Event Staffing. Hours worked were reported as part-time income from a one-time engagement over two (2) days. This should not have affected eligibility or superseded original claim with previous full-time employer, BNY Mellon.(C.R., Item No. 11.) Claimant included with the petition for appeal a notice of determination of "nonfault" overpayment of benefits (OVP NOD), dated March 22, 2011. The OVP NOD provides that it "is a nonfault overpayment because: the Referee reversed the decision of the . . . Service Center under Section 402(h)." (Id.) The OVP NOD does not specifically reference Fusion or any other employer, and it does not specifically reference the Referee's March 10, 2011 decision as the basis for concluding that Claimant received an overpayment for weeks between January 8, 2011, and March 12, 2011, although the latter is the claim week ending immediately after the Referee issued her March 10, 2011 decision. The OVP NOD provides that the last day to timely appeal the OVP NOD was April 6, 2011. Thus, it appears that after Claimant received the OVP NOD, she attempted to appeal the earlier Referee decision dated March 10, 2011.
It is unclear from the record before the Court whether the OVP NOD was issued in referenced to the Referee's March 10, 2011 decision or some other Referee decision related to one of Claimant's other "employers." A hand-written sticky-note attached to OVP NOD indicates that the "OVP appeal [was] processed[-] see 11-09-H-3659." (C.R., Item No. 11.) Claimant's appeal of the OVP NOD is not before the Court in this matter.
The record further reveals that the UC Center mailed Claimant the NOD OVP on March 22, 2011 (two business days before the deadline for appealing the Referee's decision regarding the Fusion NOD), informing her that, because "the Referee reversed the decision of the . . . Service Center under Section 402(h) [of the Law]," the Service Center calculated that she had received an overpayment of $3,294. We note that the NOD OVP neither referenced an employer nor referred back to the Referee's decision with regard to the Fusion NOD. The appeal deadline for the NOD OVP was April 6, 2011. Claimant timely appealed the NOD OVP and on the same date she filed an untimely appeal of the Referee's decision regarding the Fusion NOD. (C.R., Item No. 12.)
A Referee conducted a hearing on June 7, 2011, during which Claimant testified and submitted evidence regarding the timeliness of her appeal. (C.R., Item No. 18.) Fusion presented the testimony of its Accounting Manager, Andrea Thompson. During the course of the hearing, Claimant provided testimony relating to the actions that she took with regard to her unemployment compensation claim. Claimant explained that when she filed her claim for benefits, she was only seeking benefits based upon her full-time employment with BNY Mellon. Claimant testified that she became confused when she received the Fusion NOD after having received the Mellon NOD. She testified that she became further confused when Fusion filed an appeal from the Fusion NOD and she received the Referee's notice of hearing for March 8, 2011. Claimant testified that she did not understand the reason for a hearing, because she believed that she had only sought benefits from BNY Mellon when she applied in November 2010.
Claimant testified that she contacted the Service Center and spoke with UC Representative K. Dressler (the UC Representative). Claimant testified, as follows, regarding her conversation with the UC Representative:
Since [the UC Representative] had understood that I had been working for a time for Fusion . . . for this job, and reported my earnings, and that I've not been expecting to receive any benefits from this Employer, he had advised me that a hearing should not be necessary, and that it would not be necessary to attend the hearing. And I had been contacted also that same day by Fusion ... here on the phone, and I had provided her with [the UC Representative's] number. And he said that they would speak and they would smooth things over, and I was assured that attending a hearing would not be necessary... He said that my benefits should be fine, that I should continue to receive them from my previous full-time Employer, and that a hearing would not be necessary as it wasn't an Employer—as Fusion was not an Employer that I was receiving benefits from, that benefits would continue from [Mellon], and that the Fusion should be only reported as my part-time work.(C.R., Item No. 18 at 15-16.) Claimant also testified that, despite communications between the UC Representative and Fusion's Accounting Supervisor suggesting that the hearing would not proceed, no one ever advised her that the hearing was going to proceed.
A letter from Fusion contained in the record, dated March 3, 2011, and received by the Referee's office, indicates that Fusion's representative spoke with Claimant and the UC Representative. (C.R., Item No. 8.) According to the letter, both the UC Representative and Fusion apparently agreed that Claimant should have been classified as an independent contractor for Fusion and that Fusion would not be responsible for unemployment compensation benefits. (C.R., Item No. 8.) On that basis, Fusion sought to have the appeal dismissed. (Id.) A hand-written note on the letter indicates that the Referee's office telephoned Fusion, not Claimant, and informed Fusion that the determination was final and that the hearing would proceed. (Id.)
Claimant also testified that she received the Referee's March 10, 2011 decision, in which the Referee concluded that Claimant was not eligible for benefits. In response to her counsel's question as to why she did not heed the notification on the decision regarding an appeal deadline of March 25, 2011, Claimant testified as follows:
Q. And why did you not file an Appeal by that date?(Id. at 17-18.)
A. Because, per the conversation between [the UC Representative] and I, and then between Fusion and I, and whatever conversation may have occurred between [the UC Representative] and Fusion, as I was advised occurred, that this was going to be smoothed over; or, per the Service Center and Fusion, that this was a confusing mix-up, and that I agreed that I did not wish to receive benefits. I wasn't able to try to receive benefits from Fusion[].
Q. Okay. And was it—what was your understanding as to whether or not your benefits would continue as a result of your employment at Mellon?
A. I was assured that my benefits would continue as a result of my separation . . . from [Mellon], and that this can be straightened out, and that any, that anything reported for Fusion would, would just be reported as my part-time income, and that would not take over as the source of my benefits. And from what I understood, it could not take over the source of my benefits.
Claimant further testified that she called the Service Center on March 17, 2011, because she had stopped receiving benefits. Claimant testified that the UC Representative "acknowledged that this was a mistake and a bunch of confusion. He was seeing if he could arrange it so that I receive my benefits in the meantime while this is cleared up." (Id. at 18-19.) Claimant also testified that the UC Representative had "followed up with a phone call, indicating that could not happen, and I would have to file an Appeal and attend another hearing." (Id. at 19.) Claimant's testimony appears to indicate that this follow-up conversation occurred two weeks after her March 17, 2011 conversation: "I had spoken to him ... two weeks later, when I had also, once again . . . another deposit of benefits did not go into my account. The day after that, I had called [the UC Representative] again and asked if there was any update on the progress of the situation." (Id. at 20.) Claimant testified that the UC Representative told her at that time that she "had to file an Appeal." (Id. at 20.)
The Board issued its decision based upon the record created by the Referee, and issued the following findings of fact:
1. The claimant filed an application for unemployment compensation benefits on November 21, 2010.
2. The claimant's request for benefits was granted by the Department.
3. Fusion Marketing & Promotions filed an appeal from this determination.
4. Following a hearing on the merits, the Referee issued a decision which denied the claimant benefits.
5. A copy of the referee's decision was mailed to the claimant at her last known post office address on the same date.
6. The decision was accompanied by notice advising that the interested parties had fifteen (15) days in which to file a valid appeal.
7. The claimant received a copy of the Referee's decision.
8. The claimant's appeal from the Referee's decision, in order to be timely, had to have been filed on or before March 25, 2011.
9. The claimant was confused because the Referee remanded a companion appeal to the Department.
10. The claimant spoke to a Department representative, who told the claimant that he would look into the situation. The representative called
the claimant back and told her that she needed to appeal the Referee's decision.(C.R., Item No. 19.) The Board concluded simply, without discussion of the facts and relevant legal standard for nunc pro tunc review, that the appeal period is mandatory and that the Claimant did not file her appeal within the fifteen-day appeal period established by Section 502 of the Law. (Id.) The Board, therefore, dismissed Claimant's appeal as untimely. (Id.) Claimant then petitioned for review with this Court.
11. The claimant's appeal was filed on April 6, 2011, by certified U.S. mail.
12. The claimant was not misinformed or misled by the unemployment compensation authorities concerning her right or the necessity to appeal.
13. The claimant's filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or be non-negligent conduct.
On appeal, Claimant argues that the Board erred in dismissing her appeal as untimely because the Board's finding of facts are not supported by substantial evidence. Claimant also argues that the Board committed an error of law in failing to allow her to appeal nunc pro tunc. Claimant further argues that, on the merits, she should not be deemed to be ineligible for unemployment compensation benefits under Section 402(h) of the Law.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
First, we will address Claimant's argument that substantial evidence does not exist to support certain findings of facts. Substantial evidence is defined as relevant evidence upon which a reasonable mind could base a conclusion. Johnson v. Unemployment Comp. Bd. of Review, 502 A.2d 738, 740 (Pa. Cmwlth. 1986). In determining whether there is substantial evidence to support the Board's findings, this Court must examine the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Id. A determination as to whether substantial evidence exists to support a finding of fact can only be made upon examination of the record as a whole. Taylor v. Unemployment Comp. Bd. of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977). The Board's findings of fact are conclusive on appeal only so long as the record, taken as a whole, contains substantial evidence to support them. Penflex, Inc. v. Bryson, 506 Pa. 274, 286, 485 A.2d 359, 365 (1984).
As indicated above, finding of fact number 9 provides that "[t]he claimant was confused because the Referee remanded a companion appeal to the Department." Claimant contends that her un-rebutted testimony indicates that the real source of her confusion was the UC Representative's communication to her that there had been a mix-up, but that he and Fusion would try to clear up the mistake or confusion. We agree with Claimant that there was no evidence or testimony concerning how the remand in the companion case caused Claimant to be confused. Thus, we agree with Claimant that there is no substantial evidence to support finding of fact number 9. This error alone, however, does not provide a sufficient basis upon which to reverse the Board's decision.
Claimant also argues that finding of fact number 10 is not supported by substantial evidence. That factual finding provides that "[t]he claimant spoke to a Department representative, who told the claimant that he would look into the situation. The representative called the claimant back and told her that she needed to appeal the Referee's decision." As discussed above, Claimant testified that she called the Service Center on March 17, 2011, because she had stopped receiving benefits, and that the UC Representative acknowledged a mistake and said that he would try to arrange for her to receive her benefits. (Id. at 18-19.) Approximately two weeks later, the UC Representative informed her that she would have to file an appeal. Such testimony constitutes substantial evidence of record to support finding of fact number 10. We note, however, that the finding lacks specificity as to when the UC Representative informed Claimant of the need to appeal. While the lack of specificity as to timing does not negate our conclusion that substantial evidence exists, it leaves open the questions of whether the UC Representative misled Claimant into believing that the UC Representative could "fix" the problem and also whether the UC Representative informed Claimant of a need to appeal prior to or after the expiration of the appeal period. Thus, finding of fact number 10 has little substantive value.
As to findings of fact numbers 12 and 13, Claimant argues that substantial evidence does not exist to support a finding that she was not "misinformed or misled" about the need to file an appeal or that the filing of her "late appeal was not caused by fraud or its equivalent by the authorities, a breakdown in the appellate system, or by non-negligent conduct." As Claimant points out, an appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to the petitioner, his counselor, or a third party. Cook v. Unemployment Comp. Bd. of Review, 543 Pa. 381, 383-84, 671 A.2d 1130, 1131 (1996). We note that findings of fact numbers 12 and 13 are actually mixed findings of fact and conclusions of law. Moreover, because the Board failed to make any findings regarding Claimant's reasons for her delay, we are unable to engage in effective appellate review of whether findings of fact numbers 12 and 13 are supported by substantial evidence of record. Thus, because the Board's findings "are insufficient for this Court to exercise meaningful appellate review," a remand is appropriate. Stana v. Unemployment Comp. Bd. of Review, 791 A.2d 1269, 1271 (Pa. Cmwlth.), appeal denied, 572 Pa. 717, 813 A.2d 848 (2002).
In Stana, the claimant contended that she was misled as to the necessity to file an appeal because unemployment compensation authorities misinformed her as to the number of credit weeks that she had for purposes of compensation. On appeal, we concluded that the Referee and Board failed to make credibility determinations or other findings with regard to the claimant's asserted reasons for the delay in filing. We vacated and remanded the Board's decision for additional findings of fact relating to the reasons why Claimant was late filing an appeal. The Court reasoned as follows:
[T]he "[c]laimant's testimony, if believed by the factfinder, may well be sufficient to establish that her appeal should be allowed nunc pro tunc. If the claims representative led Claimant to believe the problem had already been resolved, [c]laimant could hardly be expected to stand there and insist on filing a formal, written appeal. This is especially true if, indeed, the claims officer had corrected a similar error for Claimant in the past.Id. at 1271.
As in Stana, in the matter now before the Court, the Board did not make credibility determinations regarding Claimant's testimony as to the reasons for her delay in filing the appeal. Also, the Board's findings of fact failed to address with specificity the reasons for the delay in filing. For instance, the Board made no findings as to: (1) whether the UC Representative misled Claimant to believe that a mistake had occurred that could be resolved by the UC Representative without a need for a hearing, (2) whether the Service Center's determinations themselves were confusing or misled or misinformed Claimant, and (3) whether the UC Representative instructed Claimant to appeal the Referee's decision during their telephone conversation before or after the expiration of the appeal period. Without such specific findings, we are unable to consider on appeal whether findings of fact numbers 12 and 13, relating to whether there was a breakdown in the administrative process or whether Claimant was misled or misinformed by unemployment compensation authorities, are supported by substantial evidence of record.
This Court, having carefully reviewed the entire record, notes that the lack of any information in the Referee's decision as to any potential impact the decision could have on Claimant's entitlement to benefits under the BNY Mellon NOD, combined with the lack of any employer-related information whatsoever in the NOD OVP, could cause confusion and uncertainty as to the effect, if any, of the Referee's decision on Claimant's continued receipt of benefits. While we recognize that the Department is not legally obligated to give claimants notice of all consequences stemming from an adverse decision, we are troubled by the lack of any reference anywhere in the record to a potential impact on benefits granted as a result of Claimant's employment with BNY Mellon. See Wojciechowski v. Unemployment Comp. Bd. of Review, 407 A.2d 142 (Pa. Cmwlth. 1979). In Wojciechowski, this Court held that the lack of notice to a claimant that the referee's decision could result in claims for reimbursement of compensation paid, did not justify a late appeal. Id. at 143. In so doing, the Court specifically opined that due process does not require that referees advise pro se claimants on specific points of law. Id. at 143-44. We note that the case now before the Court is potentially distinguishable from Wojciechowski because here, unlike in Wojciechowski, Claimant argues more than lack of knowledge of the consequences. Rather, Claimant, in the matter now before the Court, argues lack of knowledge and misinformation from the UC Representative. Thus, more specific findings of fact are crucial for purposes of appellate review. --------
For those reasons, we must vacate the order of the Board and remand the matter to the Board for the issuance of new findings of fact and conclusions of law.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 20th day of July, 2012, the order of the Unemployment Compensation Board of Review (Board) is hereby VACATED and the matter is REMANDED to the Board for issuance of new findings of fact and conclusions of law consistent with this Opinion.
Jurisdiction relinquished.
/s/_________
P. KEVIN BROBSON, Judge