Opinion
No. 1903 C.D. 2013
07-16-2014
Remedious Bernadine Douglas, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Remedious Bernadine Douglas (Claimant) petitions, pro se, for review of an order of the Unemployment Compensation Board of Review (Board), in which the Board affirmed the denial of Claimant's request for waiver of repayment of overpaid Emergency Unemployment Compensation (EUC) benefits as untimely. For the reasons that follow, we affirm.
On June 6, 2013, the Unemployment Compensation Service Center issued a determination establishing an overpayment of EUC benefits. (Record Item (R. Item) 1, Claim Record.) Claimant requested a waiver of the overpayment and, on June 25, 2013, the Service Center issued a notice of determination denying Claimant's request for a waiver. (R. Item 2, Request for Waiver of Overpayment of EUC Benefits; R. Item 3, Notice of Determination.) The notice indicated that the determination would become final unless Claimant filed an appeal by July 10, 2013, fifteen days after the notice was issued. (R. Item 3, Notice of Determination at 1, 3.) Claimant filed her petition for appeal of the determination on July 23, 2013. (R. Item 4.) A hearing was held before the Referee on the issue of whether Claimant's appeal of the determination was timely. (R. Item 6, Notice of Hearing; R. Item 7, Hearing Transcript (H.T.) at 1.) At the hearing, Claimant testified that the notice was mailed to her at her correct address, but that she was regularly away from home caring for her ill mother in Maryland and that she filed the appeal as soon as she saw the notice in her mail. (R. Item 7, H.T. at 2-4.)
EUC benefits are a federally funded and state-administered unemployment compensation benefit program created pursuant to a federal statute. See Title IV of the Supplemental Appropriation Act of 2008, P.L. 110-252, 122 Stat. 2353, as amended, 26 U.S.C. § 3304 Note. The federal statute provides that "[t]he terms and conditions of the State law which apply to claims for regular compensation and to the payment thereof (including terms and conditions relating to availability for work, active search for work, and refusal to accept work) shall apply to claims for [EUC benefits] and the payment thereof." Id. (Section 4001(d)(2)). States participating in the EUC benefit program are mandated to require repayment of overpaid EUC benefits except where the claimant was without fault and the repayment would be contrary to equity and good conscience. Id. (Section 4005(b)).
In an August 23, 2013 decision and order, the Referee dismissed Claimant's petition for appeal of the Service Center's determination, concluding that it was untimely because it was not filed within fifteen days of the notice of determination. (R. Item 8, Referee's Decision and Order.) Claimant appealed the Referee's decision to the Board and, on September 27, 2013, the Board issued an opinion and order affirming the Referee's decision and order. (R. Item 11, Board Opinion and Order.) In its opinion and order, the Board made the following findings of fact:
1. A Notice of Determination (determination) was issued to the claimant on June 25, 2013, denying claimant's request for waiver of repayment of overpaid Emergency Unemployment Compensation benefits.(Id., Findings of Fact (F.F.) ¶¶1-10.) The Board concluded that the facts presented in this case do not allow for the acceptance of an appeal after the statutory appeal period because the late appeal was not caused by fraud or its equivalent, a breakdown in the administrative process or non-negligent conduct on behalf of Claimant. (Id., Discussion at 2.) The Board also noted that Claimant testified at the hearing that she did not regularly check her mail, which the Board concluded as demonstrating negligence on the part of Claimant. (Id.) Claimant petitioned this Court for review of the Board's decision and order.
2. A copy of this determination was mailed to the claimant at her last known post office address on the same date.
3. There is no evidence to indicate that the determination sent to the claimant was returned as undeliverable by the postal authorities.
4. The claimant admits receiving the notice.
5. The notice informed the claimant that July 10, 2013 was the last day on which to file an appeal from this determination.
6. The claimant does not check her mail regularly.
7. The claimant goes in and out of town often to care for her mother in Maryland.
8. The claimant did not have specific dates when she was visiting her mother.
9. The claimant filed her appeal by fax on July 23, 2013.
10. There is no evidence that the claimant was misinformed or misled by the unemployment compensation authorities regarding her right or the necessity to appeal.
On appeal, Claimant does not dispute that her appeal was untimely. Section 501(e) of the Unemployment Compensation Law provides that an appeal must be filed within fifteen calendar days after such notice was delivered to the claimant personally or was mailed to the claimant's last known postal address, and the requirement that the appeal be filed by July 10, 2013, fifteen days after the date of mailing on June 25, 2013, was clearly stated on the notice of determination. Claimant filed her appeal on July 23, 2013, thirteen days after it was due. Claimant instead argues that her appeal should be permitted because it falls within one of the circumstances which would justify an untimely appeal nunc pro tunc. Claimant contends that she was unable to receive her mail during the fifteen-day appeal period because she was required to be out of town to care for her mother who was suffering from the early stages of dementia.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
This Court's statutorily prescribed scope of review of an adjudication of a Commonwealth agency is limited to determining whether errors of law were committed, constitutional rights or agency procedures were violated, and necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. As we have explained, however, in cases, such as here, where the burdened party below is the only party to present evidence and does not prevail, the substantial evidence test is inapplicable because "[i]f no evidence was presented to support the prevailing party, there is no evidence upon which to apply the substantial evidence test." Herbert v. Unemployment Compensation Board of Review, 571 A.2d 526, 527 (Pa. Cmwlth. 1990) (quoting Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 550 A.2d 1364, 1365 (Pa. Cmwlth. 1988) (quotation marks omitted)); see also McKenna v. Unemployment Compensation Board of Review, 981 A.2d 415, 417 n.4 (Pa. Cmwlth. 2009). Instead we must determine whether the agency capriciously disregarded competent evidence. McKenna, 981 A.2d at 417 n.4; Herbert, 571 A.2d at 527. A capricious disregard of evidence will be found where "the Board deliberately disregarded competent evidence that a person of ordinary intelligence could not conceivably have avoided in reaching a particular result, or stated another way, ...willfully or deliberately ignored evidence that any reasonable person would have considered to be important." Jackson v. Unemployment Compensation Board of Review, 933 A.2d 155, 157 n.4 (Pa. Cmwlth. 2007) (citing Leon E. Wintermyer, Inc. v. Workers' Compensation Appeal Board (Marlowe), 812 A.2d 478, 487 n.12 (Pa. 2002)).
The failure to file a timely appeal of an administrative agency action is a jurisdictional defect and the time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1002-03 (Pa. Cmwlth. 2010). An appeal nunc pro tunc may be permitted only where the delay in the filing of the appeal was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process or non-negligent circumstances relating to the appellant or appellant's counsel. Id. at 1003; Lopresti v. Unemployment Compensation Board of Review, 55 A.3d 561, 563 (Pa. Cmwlth. 2012). Where the appellant asserts that the late appeal was caused by non-negligent circumstances related to appellant or her counsel, she must show that the appeal was filed within a short time after she or her counsel had an opportunity to address the untimeliness, the period that elapsed was of a short duration and the appellee was not prejudiced by the delay. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996). The appellant faces a heavy burden in establishing circumstances that would justify an untimely appeal. Lopresti, 55 A.3d at 563.
We agree with the Board that Claimant has not met her burden of establishing circumstances which would justify an appeal nunc pro tunc. At the hearing, Claimant testified that she was periodically away from home to care for her sick mother who lived in Maryland and that she immediately filed her appeal when she saw that she had received it in the mail. (R. Item 7, H.T. at 2.) Claimant could not, however, testify as to what specific days she was out of town during the fifteen-day appeal period following the receipt of the determination, and stated only that she had receipts demonstrating that she was in Maryland on June 3 and July 7, 2013. (Id. at 3, 4.).
Furthermore, Claimant did not establish that her conduct was non-negligent as she admitted during her testimony that she did not regularly check her mail because most of her important correspondence now occurred through email. (Id. at 3, 4.) Though Claimant was aware that she would be receiving a determination regarding her request for a waiver of repayment of the EUC benefits, she did not present any evidence that she asked a friend or family member to monitor her mail while she was out of town or why such an arrangement was infeasible.
It is well-established that an illness can constitute non-negligent circumstances to support a finding that an appeal should be allowed nunc pro tunc. For example, in Cook, the appellant collapsed and was admitted to a hospital's cardiac care unit, where he spent seven days and missed a previously scheduled appointment with an attorney and the deadline to file the appeal. 671 A.2d at 1130-31. The appellant filed his appeal four days after the appeal was due and three days after he was discharged from the hospital. Id. at 1131. Our Supreme Court concluded that the appellant had met his burden of showing that the late filing was the result of non-negligent circumstances and that the appellant promptly perfected the appeal upon his release from the hospital. Id. at 1132. Similarly, in Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), our Supreme Court allowed a late appeal where the secretary of the appellant's attorney was entrusted to file an appeal and prepared the notice of appeal six days prior to the day the appeal was due but then fell ill and was out of work for ten days. Id. at 1134. Upon returning to work four days after the appeal deadline, the secretary immediately filed the notice of appeal. Id. The Court permitted the appeal because it was based upon a non-negligent circumstance of the secretary's illness and the lapse was remedied within a short period. Id. at 1135-36.
In those cases, the late filing of an appeal was caused by an unexpected medical emergency that occurred shortly before the deadline, and the appellants and their counsel filed the appeal within a very short period after the emergency. See Cook, 671 A.2d at 1132 (noting that the appellant "pursued his appeal promptly upon release from the hospital"); Bass, 401 A.2d at 1135 (noting that the appellant's "non-negligent failure to file a timely appeal [] was corrected within a very short time"); see also Ercolani v. Commonwealth, 922 A.2d 1034, 1037 (Pa. Cmwlth. 2007) ("[A] petitioner in a nunc pro tunc appeal must proceed with reasonable diligence once he knows of the necessity to take action."). Here, by contrast, Claimant submitted no evidence that she was attending to an unexpected, urgent medical situation involving her mother throughout the appeal period or at the time the appeal period expired or that she took efforts to monitor her mail while away and file her appeal of the determination with reasonable diligence. While this Court has sympathy for the responsibilities Claimant bears in caring for her ailing parent, we cannot conclude on the evidence presented that Claimant's appeal thirteen days after it was due should have been accepted by the Board nunc pro tunc.
Cook and Bass are also distinguishable in that the sudden illness befell the parties directly responsible for filing the appeal. We see no reason to conclude, however, that the sudden illness of a close family member of an appellant may not be considered a non-negligent circumstance allowing for a nunc pro tunc appeal in the proper case.
Claimant also challenges the Board's Finding of Fact No. 8, which stated that Claimant "did not have specific dates when she was visiting her mother," (R. Item 11, Board Opinion and Order F.F. ¶8), as Claimant had attempted at the hearing to document the dates she was visiting her mother by providing the Referee with receipts from Maryland businesses. At the hearing, Claimant asked the Referee if she wanted any "proof" of the days Claimant was caring for her mother and then offered two receipts on June 3 and July 7, 2013. (R. Item 7, H.T. at 3-4.) The Referee did not accept the receipts into evidence, stating that she was not sure if the receipts were relevant or if she needed to know the specific days because Claimant had testified that she had been "in and out of town" during the appeal period. (Id. at 4.)
While the June 3, 2013 receipt was from before the date of the determination, the July 7, 2013 receipt appeared to be relevant and competent evidence, supporting Claimant's case that she was away from home during the fifteen-day appeal period. Though we believe that the Referee would have been better advised to have accepted the July 7, 2013 receipt into evidence and create a complete record for the resolution of the Board, see Procito v. Unemployment Compensation Board of Review, 945 A.2d 261, 264 (Pa. Cmwlth. 2008) (holding that a referee has a responsibility to assist a pro se claimant in adequately developing a record necessary to render a decision); Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829, 832 n.7 (Pa. Cmwlth. 2003) (same), we cannot conclude that the Referee's decision to not accept into evidence the July 7, 2013 receipt was in any way prejudicial to claimant. The July 7, 2013 receipt at most only demonstrated that Claimant was absent from Pennsylvania during one of the fifteen days provided for Claimant to perfect her appeal and her absence on that date would not have prevented her from filing a timely appeal. A finding that Claimant was away for a medical emergency would therefore not constitute a basis for a nunc pro tunc appeal. Furthermore, Claimant admitted her negligence in failing to check her mail during the appeal period. On this evidence, we do not believe that the dismissal of the appeal was improper.
In her brief, Claimant admits that the only two days she was visiting her mother in Maryland during the 28 days that elapsed between the mailing of the notice and the filing of the appeal were July 4 and July 7, 2013. (Claimant's Br. at 10.)
Nor do we conclude that the decision of the Referee to not accept the receipts into evidence violated Claimant's due process rights. While due process requires that a party at an administrative hearing be permitted to present evidence on the pertinent issues, Air-Serv Group, LLC v. Commonwealth, 18 A.3d 448, 456 n.8 (Pa. Cmwlth. 2011); see also 34 Pa. Code § 101.21(b), "the question is not merely whether such an error occurred, but rather whether any such error was prejudicial or caused harm to the complaining party." D.Z. v. Bethlehem Area School District, 2 A.3d 712, 719 (Pa. Cmwlth. 2010); see also State Dental Council and Examining Board v. Pollock, 318 A.2d 910, 916 (Pa. 1974). Here, Claimant was not prejudiced as the receipt, while probative, was far short of the showing required to substantiate a nunc pro tunc appeal.
Accordingly, the order of the Board is affirmed.
As we determine that Claimant's appeal was untimely, we do not reach the additional arguments set forth in Claimant's brief, which challenge the overpayment determination and the denial of the request for waiver of repayment on the merits. --------
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 16th day of July, 2014, the Order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge