IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kiara E. Calverley, : Petitioner : : v. : No. 736 C.D. 2017 : SUBMITTED: January 19, 2018 Unemployment Compensation : Board of Review, : Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE CEISLER FILED: February 12, 2018
Kiara E. Calverley (Claimant) petitions for review, pro se, of the April 11,
2017 order of the Unemployment Compensation Board of Review (Board) affirming
the decision of a referee to dismiss Claimant’s appeal as untimely. We affirm.
Claimant filed an application for unemployment compensation benefits on
December 11, 2016. The local service center determined that Claimant was
financially ineligible for benefits under section 404(c) of the Unemployment
Compensation Law (Law)1 because her employer, Sky Financial Services, Inc.
1 Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(c). Section 404(c) of the Law provides that “[n]otwithstanding any other provision of this act, any employe with less than sixteen (16) ‘credit weeks’ during the employe’s base year shall be ineligible to receive any amount of compensation.” 43 P.S. § 804(c). (Employer), had not reported Claimant’s wages to the Commonwealth of
Pennsylvania. R. Item Nos. 1-2; N.T., 2/2/17, at 5. On December 20, 2016, the local
service center mailed a Notice of Financial Determination (Notice) to Claimant’s
last known postal address. Ref.’s Findings of Fact, Nos. 1-2.2 The Notice was not
returned by the United States Postal Service as “undeliverable.” Id., No. 3. The
Notice informed Claimant that she had until January 4, 2017 to file an appeal from
the Notice. Id., Nos. 4-5. Claimant did not file an appeal on or before January 4,
2017. Id., No. 6.
On January 9, 2017, Claimant appealed to the referee. Id. The referee held
an evidentiary hearing on February 2, 2017. Claimant participated in the hearing by
telephone and was the only witness to testify. Employer did not attend the hearing.
See N.T., 2/2/17, at 1.
At the hearing, Claimant testified that she received the Notice before January
4, 2017 but did not file an appeal before that date. Id. at 5-6. Claimant stated that
she was unsure if she needed to file an appeal because she was still able to file her
bi-weekly wage claims. Id. at 6. Claimant further testified that after multiple,
unsuccessful attempts to contact the Department of Labor and Industry (Department)
2 The Board adopted and incorporated the referee’s findings of fact and conclusions of law in their entirety. See Bd.’s Order, 4/11/17, at 1.
2 by phone to ask whether she should file an appeal, she decided to file an appeal on
January 9, 2017 “just in case.” Id.
On February 3, 2017, the referee dismissed Claimant’s appeal as untimely
under section 501(e) of the Law, 43 P.S. § 821(e).3 The referee found that Claimant
was neither misinformed nor misled regarding her right of appeal or her need to file
a timely appeal. Ref.’s Findings of Fact, No. 7. The referee also found that
Claimant’s filing of a late appeal was not the result of fraud, a breakdown in the
appellate system, or non-negligent conduct. Id., No. 8.
Claimant timely appealed to the Board, which adopted the referee’s findings
of fact and conclusions of law and affirmed the referee’s decision. The Board
determined that Claimant failed to establish fraud or an administrative breakdown
so as to justify her untimely appeal. The Board concluded:
The claimant did not file an appeal from the determination at issue by the January 4, 2017, deadline because she did not think [she] needed to given that [she] was able to continue filing her bi-weekly claims. This does not
3 Section 501(e) of the Law provides:
Unless the claimant . . . files an appeal . . . from the determination contained in any notice required to be furnished by the [D]epartment [of Labor and Industry] under section [501] (a), (c) and (d) [of the Law], within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the [D]epartment, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.
43 P.S. § 821(e) (internal footnote omitted).
3 constitute sufficient reason for finding her appeal timely[,] as claimants are specifically instructed to continue filing their bi-weekly claims during the pendency of their appeals even if they were denied benefits. Bd.’s Order, 4/11/17, at 1. Claimant now appeals to this Court.4
Claimant asserts that her late appeal was caused by an administrative
breakdown. Specifically, she claims that she repeatedly called the Department
before the appeal deadline to inquire about the status of her claim but was unable to
reach a representative. Claimant asserts that her inability to speak with a Department
representative regarding her claim constituted an administrative breakdown, thereby
justifying her filing of an untimely appeal. We disagree.
Section 501(e) of the Law requires a claimant to file an appeal from a
Department determination within 15 days of the date of mailing to the claimant’s
last known postal address. 43 P.S. § 821(e). The “15-day time limit is mandatory
and subject to strict application.” Vereb v. Unemployment Comp. Bd. of Review, 676
A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en banc). If the claimant does not file an
appeal within 15 days, “the determination becomes final, and the [Department] does
not have the requisite jurisdiction to consider the matter.” Id.
4 Where the party with the burden of proof was the only party to present evidence and did not prevail below, our scope of review is limited to determining whether the Board capriciously disregarded competent evidence and whether there was a constitutional violation or an error of law. Constantini v. Unemployment Comp. Bd. of Review, 173 A.3d 838, 842 n.4 (Pa. Cmwlth. 2017). 4 A claimant has “a heavy burden to justify” the filing of an untimely appeal.
Constantini, 173 A.3d at 844. “Generally, an appeal nunc pro tunc may be allowed
when a delay in filing the appeal is caused by extraordinary circumstances involving
‘fraud or some breakdown in the court’s operation through a default of its officers.’”
Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996)
(citation omitted). To satisfy his or her burden of proof, the claimant must establish
that the Department “engaged in fraudulent behavior or manifestly wrongful or
negligent conduct” or that “non-negligent conduct beyond [the claimant’s] control
caused the delay.” Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194,
198 (Pa. Cmwlth. 2008).
The Pennsylvania Supreme Court has explained that an administrative
breakdown occurs when “an administrative board or body is negligent, acts
improperly[,] or unintentionally misleads a party.” Union Elec. Corp. v. Bd. of Prop.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kiara E. Calverley, : Petitioner : : v. : No. 736 C.D. 2017 : SUBMITTED: January 19, 2018 Unemployment Compensation : Board of Review, : Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE CEISLER FILED: February 12, 2018
Kiara E. Calverley (Claimant) petitions for review, pro se, of the April 11,
2017 order of the Unemployment Compensation Board of Review (Board) affirming
the decision of a referee to dismiss Claimant’s appeal as untimely. We affirm.
Claimant filed an application for unemployment compensation benefits on
December 11, 2016. The local service center determined that Claimant was
financially ineligible for benefits under section 404(c) of the Unemployment
Compensation Law (Law)1 because her employer, Sky Financial Services, Inc.
1 Act of Dec. 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 804(c). Section 404(c) of the Law provides that “[n]otwithstanding any other provision of this act, any employe with less than sixteen (16) ‘credit weeks’ during the employe’s base year shall be ineligible to receive any amount of compensation.” 43 P.S. § 804(c). (Employer), had not reported Claimant’s wages to the Commonwealth of
Pennsylvania. R. Item Nos. 1-2; N.T., 2/2/17, at 5. On December 20, 2016, the local
service center mailed a Notice of Financial Determination (Notice) to Claimant’s
last known postal address. Ref.’s Findings of Fact, Nos. 1-2.2 The Notice was not
returned by the United States Postal Service as “undeliverable.” Id., No. 3. The
Notice informed Claimant that she had until January 4, 2017 to file an appeal from
the Notice. Id., Nos. 4-5. Claimant did not file an appeal on or before January 4,
2017. Id., No. 6.
On January 9, 2017, Claimant appealed to the referee. Id. The referee held
an evidentiary hearing on February 2, 2017. Claimant participated in the hearing by
telephone and was the only witness to testify. Employer did not attend the hearing.
See N.T., 2/2/17, at 1.
At the hearing, Claimant testified that she received the Notice before January
4, 2017 but did not file an appeal before that date. Id. at 5-6. Claimant stated that
she was unsure if she needed to file an appeal because she was still able to file her
bi-weekly wage claims. Id. at 6. Claimant further testified that after multiple,
unsuccessful attempts to contact the Department of Labor and Industry (Department)
2 The Board adopted and incorporated the referee’s findings of fact and conclusions of law in their entirety. See Bd.’s Order, 4/11/17, at 1.
2 by phone to ask whether she should file an appeal, she decided to file an appeal on
January 9, 2017 “just in case.” Id.
On February 3, 2017, the referee dismissed Claimant’s appeal as untimely
under section 501(e) of the Law, 43 P.S. § 821(e).3 The referee found that Claimant
was neither misinformed nor misled regarding her right of appeal or her need to file
a timely appeal. Ref.’s Findings of Fact, No. 7. The referee also found that
Claimant’s filing of a late appeal was not the result of fraud, a breakdown in the
appellate system, or non-negligent conduct. Id., No. 8.
Claimant timely appealed to the Board, which adopted the referee’s findings
of fact and conclusions of law and affirmed the referee’s decision. The Board
determined that Claimant failed to establish fraud or an administrative breakdown
so as to justify her untimely appeal. The Board concluded:
The claimant did not file an appeal from the determination at issue by the January 4, 2017, deadline because she did not think [she] needed to given that [she] was able to continue filing her bi-weekly claims. This does not
3 Section 501(e) of the Law provides:
Unless the claimant . . . files an appeal . . . from the determination contained in any notice required to be furnished by the [D]epartment [of Labor and Industry] under section [501] (a), (c) and (d) [of the Law], within fifteen calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the [D]epartment, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.
43 P.S. § 821(e) (internal footnote omitted).
3 constitute sufficient reason for finding her appeal timely[,] as claimants are specifically instructed to continue filing their bi-weekly claims during the pendency of their appeals even if they were denied benefits. Bd.’s Order, 4/11/17, at 1. Claimant now appeals to this Court.4
Claimant asserts that her late appeal was caused by an administrative
breakdown. Specifically, she claims that she repeatedly called the Department
before the appeal deadline to inquire about the status of her claim but was unable to
reach a representative. Claimant asserts that her inability to speak with a Department
representative regarding her claim constituted an administrative breakdown, thereby
justifying her filing of an untimely appeal. We disagree.
Section 501(e) of the Law requires a claimant to file an appeal from a
Department determination within 15 days of the date of mailing to the claimant’s
last known postal address. 43 P.S. § 821(e). The “15-day time limit is mandatory
and subject to strict application.” Vereb v. Unemployment Comp. Bd. of Review, 676
A.2d 1290, 1292 (Pa. Cmwlth. 1996) (en banc). If the claimant does not file an
appeal within 15 days, “the determination becomes final, and the [Department] does
not have the requisite jurisdiction to consider the matter.” Id.
4 Where the party with the burden of proof was the only party to present evidence and did not prevail below, our scope of review is limited to determining whether the Board capriciously disregarded competent evidence and whether there was a constitutional violation or an error of law. Constantini v. Unemployment Comp. Bd. of Review, 173 A.3d 838, 842 n.4 (Pa. Cmwlth. 2017). 4 A claimant has “a heavy burden to justify” the filing of an untimely appeal.
Constantini, 173 A.3d at 844. “Generally, an appeal nunc pro tunc may be allowed
when a delay in filing the appeal is caused by extraordinary circumstances involving
‘fraud or some breakdown in the court’s operation through a default of its officers.’”
Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130, 1131 (Pa. 1996)
(citation omitted). To satisfy his or her burden of proof, the claimant must establish
that the Department “engaged in fraudulent behavior or manifestly wrongful or
negligent conduct” or that “non-negligent conduct beyond [the claimant’s] control
caused the delay.” Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194,
198 (Pa. Cmwlth. 2008).
The Pennsylvania Supreme Court has explained that an administrative
breakdown occurs when “an administrative board or body is negligent, acts
improperly[,] or unintentionally misleads a party.” Union Elec. Corp. v. Bd. of Prop.
Assessment, Appeals & Review, 746 A.2d 581, 584 (Pa. 2000); see Hessou, 942 A.2d
at 198 (noting that examples of administrative breakdown include when referee
mails decision to incorrect address, Department does not provide adequate assistance
to claimant with cognitive impairment, or Department official misleads claimant as
to proper procedure for filing appeal).
We reject Claimant’s assertion that her failure to reach a Department
representative by phone before the appeal deadline constituted an administrative
breakdown. The record contains no evidence that the Department misled or 5 misinformed Claimant about her right to appeal. In fact, Claimant’s testimony
established that she received the Notice before the appeal deadline and was aware of
the January 4, 2017 deadline and her need to file a timely appeal. See N.T., 2/2/17,
at 5-6; Ref.’s Findings of Fact, Nos. 7-8. Claimant testified that she filed her appeal
late because she was unsure of her claim status. However, nothing prevented
Claimant from filing a timely appeal while she attempted to seek clarification from
the Department. See Hessou, 942 A.2d at 200 (concluding that Board’s alleged
failure to return claimant’s phone calls did not warrant nunc pro tunc relief where
neither Board nor referee engaged in fraudulent behavior or negligent conduct and
referee’s decision notified claimant of appeal period). The evidence established that
Claimant’s own conduct caused the delay. We conclude that Claimant failed to
satisfy her burden of proving that her untimely appeal was caused by fraud, an
administrative breakdown, or non-negligent conduct beyond her control.5
5 In her brief, Claimant also asserts that she was not required to appeal from the Department’s December 20, 2016 Notice because her “reason for being denied eligibility was later found to be erroneous.” Claimant’s Br. at 6. In support of this argument, Claimant relies on the Department’s April 25, 2017 Notice of Revised Standing Order, which was issued in another appeal involving Claimant. See Claimant’s Br., Ex. B. However, because the April 25, 2017 Notice appended to Claimant’s brief is not included in the certified record before this Court, we will not consider it. See Croft v. Unemployment Comp. Bd. of Review, 662 A.2d 24, 28 (Pa. Cmwlth. 1995) (en banc) (“This Court may not consider auxiliary information appended to a brief that is not part of the certified record on appeal.”). 6 Accordingly, we affirm.
__________________________________ ELLEN CEISLER, Judge
7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kiara E. Calverley, : Petitioner : : v. : No. 736 C.D. 2017 : Unemployment Compensation : Board of Review, : Respondent :
ORDER
AND NOW, this 12th day of February, 2018, the order of the Unemployment
Compensation Board of Review, dated April 11, 2017, is hereby affirmed.
________________________________ ELLEN CEISLER, Judge