IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mirsada Begovic, :
Petitioner :
: No. 638 C.D. 2018
v. :
: Submitted: September 28, 2018
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 19, 2019
Mirsada Begovic (Claimant) petitions for review from the April 9, 2018
order of the Unemployment Compensation Board of Review (Board) affirming the
order of a referee, which dismissed her appeal as untimely pursuant to section 501(e)
of the Unemployment Compensation Law (Law).1
Facts and Procedural History
Claimant applied for unemployment compensation (UC) benefits and, on
February 27, 2017, a local service center issued a notice of financial determination
1
Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e).
finding Claimant ineligible for benefits for failure to earn sufficient wages from her
employment at Community Outreach Group and the University of Pittsburgh.
Claimant appealed arguing that her wages from her employment with Optimal Phone
Interpreters (OPI) had not been considered. (Certified Record (C.R.) at Item Nos. 3-
4.)
The local service center vacated the notice of financial determination
and performed a wage investigation. On April 11, 2017, the local service center
issued a new notice of financial determination (Revised Financial Determination) that
included wages she earned from her employment with the company Conservation
Consultants, but still did not list her wages earned with OPI. The new Revised
Financial Determination, which was mailed to her last known address, again found
Claimant ineligible for benefits for failure to earn sufficient wages and listed April
26, 2017, as the last day to file an appeal. (Referee’s Finding of Fact (F.F.) Nos. 1-3;
Certified Record (C.R.) at Item Nos. 3-5.)
Claimant filed an untimely appeal on May 17, 2017, requesting a hearing
and asserting that she did not receive an “appeal form” and, thus, did not receive
instruction on “when and how” to appeal. (C.R. at Item No. 6.) Additionally,
Claimant argued, “I am not [an] independent contractor but an employee,” and
included as an attachment the first page of a May 2, 2017 letter, entitled Explanation
Revised Notice of Financial Eligibility: Wage Discrepancy (Letter of Explanation),
from the Department of Labor and Industry (the Department), notifying Claimant that
it had concluded its wage investigation and determined that she remained ineligible
for UC benefits because her OPI wages were earned as an independent contractor and
thus did not qualify under Section 4(l)(2)(B) of the Law.2 Pertinent here, the Letter
2
Section 4(l)(2)(B) provides, in relevant part, as follows:
(Footnote continued on next page…)
2
of Explanation stated that “a revised Notice of Financial Determination has been
issued to you in a separate mailing.” (C.R. at Item No. 6).
A referee conducted a hearing over the course of two days, July 11 and
26, 2017, at which Claimant and representatives of OPI and Conservation
Consultants appeared. Claimant confirmed that the address listed on the Revised
Financial Determination was her correct address and, initially, acknowledged that she
had received it. Claimant, in fact, brought her copy of the Revised Financial
Determination to the hearing and acknowledged that the appeal deadline was listed on
it when the referee asked:
[Referee:] So they did a wage investigation. And then they
issued the new [Revised] Financial Determination on April
11th which would then be the one at issue here today. And
did you receive that?
[Claimant:] Yes.
[Referee:] Okay.
[Claimant:] And [OPI] was still missing.
(continued…)
Services performed by an individual for wages shall be deemed to be
employment subject to this [Law], unless and until it is shown to the
satisfaction of the department that--(a) such individual has been and
will continue to be free from control or direction over the
performance of such services both under his contract of service and in
fact; and (b) as to such services such individual is customarily
engaged in an independently established trade, occupation, profession
or business.
43 P.S. §753(l)(2)(B).
3
[Referee:] Okay. All Right. So this was not part of the
record here, but I will indicate -- do you agree you received
the April 11, 2017 [Revised] Financial Determination? As
it’s -- you do have it in your hand.
[Claimant:] Yes.
[Referee:] We don’t have it in the file, but you received
that?
[Claimant:] Yes.
[Referee:] Okay. And so did you take note of the appeal
deadline listed on there? It will tell you.
[Claimant:] There’s not a deadline there. April -- oh, okay.
Yeah. That’s there. Appeal --
(C.R. at Item No. 15, p. 15) (emphasis added). After acknowledging the deadline to
appeal appeared on the copy of the April 11, 2017 Revised Financial Determination,
Claimant stated, “It could be that I did not receive [it] by April 26.” Id. When asked
about the date she received the Revised Financial Determination, Claimant stated that
she did not receive it until “about five days before May 17, [2017].” (C.R. at Item
No. 15, p. 17.)
Claimant then asserted that the Revised Financial Determination she
received did not include a UC 47 Form with instructions on how to appeal and that
she spent “the whole week trying to find what is [sic] deadline because I didn’t see
[the] deadline.” Id. Claimant, however, acknowledged that she never previously had
difficulties with receiving her mail in a timely manner at her address. (Referee’s F.F.
Nos. 4-5; C.R. at Item Nos. 3, 15.)
On July 28, 2017, the referee issued a decision and order dismissing
Claimant’s appeal and finding her ineligible for benefits under section 501(e) of the
Law due to her untimely appeal. The referee noted that the record established that the
4
local service center mailed the Revised Financial Determination to Claimant’s last
known mailing address and, because there was no indication that it was returned as
undeliverable, it was presumed to have been received by Claimant. Noting
Claimant’s testimony that she was unsure of how, or with whom, to file an appeal, the
referee stated that ignorance of the law or failure to understand the appeal procedure
does not excuse a party from his statutory obligation to file a timely appeal under
Pennsylvania law. The referee additionally noted that Claimant was able to file a
timely appeal from the original financial determination. Ultimately, the referee held
that Claimant failed to present evidence of extraordinary circumstances such as fraud
or a breakdown in the administrative process and, thus, was not entitled to an appeal
nunc pro tunc. (C.R. at Item No. 21.)
Claimant filed a timely appeal from the referee’s decision setting forth a
timeline with her account of events that transpired. In it, Claimant acknowledged that
the April 11, 2017 Revised Financial Determination listed an appeal deadline of April
26, 2017, and stated, “I was planning to appeal this Determination before the
deadline.” (C.R. at Item No. 22) (emphasis in original). However, Claimant also
disclosed for the first time that, on April 19, 2017, she received a phone call from a
man that was investigating facts regarding her employment with OPI. The caller
sought further details regarding the questions that she answered previously in an
employment questionnaire, and requested that she fax two 1099-MICS documents to
the “Office of UC Benefits.” Id. Claimant further stated, “He told me that I will
receive a new revised Notice of Financial Determination very soon. He
instructed me, further, to wait for a new Determination and, in a [sic] case I do
not agree with his decision, I may file an appeal.” Id. (emphasis in original).
Claimant acknowledged that she did not mention this at the hearing, stating that she
5
assumed the referee was aware of it. Claimant further averred that she recently
learned that the “phone investigation of April 19, 2017, was conducted by the Field
Accounting Service, and the [local service center] ha[d] no track record of it,” and
that the local service center did not have a record of “any new[ly] revised Notice of
Financial Determination issued following [the] phone call.” Id. Claimant noted,
however, a duplicate April 11, 2017 Revised Financial Determination listing the
April 26, 2017 deadline was issued to her on May 18, 2017.
On September 20, 2017, the Board issued a remand order, directing the
referee to schedule a hearing “to receive testimony from a representative of the
Service Center to address [] [C]laimant’s argument that the Service Center may not
have mailed the [R]evised [F]inancial [D]etermination to her that is dated April 11,
2017. Both parties shall also have an opportunity to cross-examine the
representative.” (C.R. at Item No. 27.) A hearing was held on October 17, 2017, at
which Claimant, counsel for Conservation Consultants, and Melanie Hall, an
Employment Security Specialist representing the Department, appeared.
At the hearing, Ms. Hall testified that Claimant’s claim record had an
entry for April 10, 2017, stating that the Revised Financial Determination was mailed
to Claimant on April 11, 2017. Ms. Hall stated that these mailings are an “automatic
process,” whereby two forms are generated, one of which goes to the claimant and
the other to the employer. Ms. Hall also stated that two forms, a UC 1627, which
notifies the recipient that the enclosed document might affect his UC benefits and
contains translations into several languages, and a UC 47, which gives instructions on
how to appeal and is included with any appealable documentation, are attached to the
financial determination. Ms. Hall noted that on May 18, 2017, the day after
Claimant’s appeal was received, there were two entries on the claim form indicating
6
that duplicates of the original financial determination and the Revised Financial
Determination were mailed to Claimant. (C.R. at Item No. 32, pp. 13-14.)
Prior to questioning Ms. Hall, Claimant asserted that the Board did not
understand her appeal, which was not about whether she received the April 11th
Revised Financial Determination, which Claimant acknowledged was sent. Instead,
Claimant argued that she appealed because she felt there was a “breakdown in
administrative process on the part of the [local service center]” since the investigation
into her wages earned from OPI was still being conducted when the Revised
Financial Determination was sent. (C.R. at Item No. 32, p. 7.) Specifically,
Claimant’s appeal centered on the fact that the Revised Financial Determination was
issued prematurely because it was sent while the wage investigation into her
employment with OPI was still ongoing. Id. at p. 15.
In response, Ms. Hall explained that wage investigations are handled by
the monetary unit at the local service center, but observed that the Department
issue[s] a [f]inancial [d]etermination based on the wages
that we have at the time, just so that the Claimant is aware
that these are the wages we have on file, and we do notify
the [c]laimants when they file for wage investigation that
they will be notified once the investigation is completed.
(C.R. at Item No. 32, p. 15-16.) She noted that the financial determination the
Department issues, in this case the April 11 Revised Financial Determination, is
based upon the information it presently has in order to give the claimant an
opportunity to appeal and that if, upon completion of the wage investigation, it is
determined that the wages in question are ineligible for consideration, “there will not
be another [f]inancial [d]etermination issued because nothing has changed as far
as the wage record goes.” (C.R. at Item No. 32, p. 22) (emphasis added). Ms. Hall
7
indicated that an additional revised financial determination is issued only if wages are
added or removed from the prior financial determination. Thus, Ms. Hall explained
that Claimant was required to file a timely appeal from the April 11 Revised
Financial Determination in order for the referee to address the appeal (C.R. at Item
No. 32, pp. 15-17, 22.)
Under questioning by Conservation Consultants, Ms. Hall explained that
she did not physically mail the Revised Financial Determination because it was
automatically generated; however, she noted that there was an entry on the claim
record indicating that it was mailed and stated that the post office did not return the
Revised Financial Determination as undeliverable. (C.R. at Item No. 32, p. 21.)
Claimant presented her own testimony during which she explained that
the Department representative who called her on April 19, 2017, stated that she
would receive the “Revised Notice of Financial Determination including the status of
the [OPI wages]” and that if she did not agree with it, she could appeal. (C.R. at Item
No. 32, p. 19.) Claimant stated that, instead of appealing on April 26, pursuant to the
Department representative’s advice, she chose to wait until she received the second
revised financial determination accounting for her OPI wages. When asked
specifically whether the Department representative told her not to appeal the April 11
Revised Financial Determination, Claimant stated, “Well he said that [the]
investigation is still going on.” Id. at p. 20. Claimant further stated that the
representative told her that he would send the revised financial determination “any
moment,” which was why she chose to wait until May 2, 2017, at which point she
called him to inquire about the wage investigation’s status. Id. Claimant said she
then called an 800 number, per the representative’s advice, and was told that the
monetary unit was not sending a new revised notice of financial determination but,
8
instead, was sending a duplicate of the April 11 Revised Financial Determination.
Claimant concluded by asserting that she was not given the chance to appeal the issue
of the eligibility of her OPI wages because she never received the second revised
financial determination listing those wages as the Department simply resent the April
11 Revised Financial Determination that she had received previously. Id.
On April 9, 2018, the Board issued an order affirming the decision of the
referee to deny Claimant benefits. In its reasoning, the Board stated,
At the hearing, [] [C]laimant alleged that an administrative
breakdown was the result of her late appeal, namely that the
April 11, 2017, [Revised] [F]inancial [D]etermination was
issued prematurely given that a wage investigation was still
ongoing. The Department representative, however,
explained that the financial determination was issued before
the wage investigation was finished because it gave []
[C]laimant the ability to appeal because if it was
determined later that her [OPI] wages were not usable,
another financial determination would not be issued. The
Board does not credit [] [C]laimant’s testimony that she
was informed in any way not to appeal the April 11, 2017
[Revised Financial] [D]etermination when she was in
contact with the Department on April 19, 2017. Therefore,
because in this case there is no credible evidence that
statements made by compensation authorities were
misleading as to the availability, timing, or need for an
appeal, the Board dismisses the appeal and will not address
the wage issue. Therefore, the Board adopts and
incorporates the Referee’s findings and conclusions.
(C.R. at Item No. 35.) Claimant filed the present petition for review3 with this Court
arguing that the Board erred in failing to permit her to appeal nunc pro tunc where
she proved that there was a breakdown in the administrative process.
3
Our review of the Board’s decision “is limited to determining whether the necessary
findings of fact were supported by substantial evidence, whether errors of law were committed, or
(Footnote continued on next page…)
9
Discussion
Claimant asserts that she demonstrated a breakdown in the
administrative process occurred where the referee “did not know or ignored the fact
that [the Revised Financial] Determination of April 11, 2017, that ruled that
[Claimant] is not financially eligible for benefits, was issued prematurely while the
wage investigation was still ongoing.” (Claimant’s Brief at 13.) Claimant further
cites her testimony that she was told by the Department’s representative to wait for a
second revised determination that would replace the April 11, 2017 Revised Financial
Determination.
In pertinent part, sections 501(d) and (e) of the Law states,
(d) The department shall notify any employer or claimant
who has been notified as required . . . of any revision made
in the determination as contained in the original notice
given to such employer or claimant.
(e) Unless the claimant or last employer or base-year
employer of the claimant files an appeal with the board
from the determination contained in any notice required to
be furnished . . . 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 department, 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(d), (e).
(continued…)
whether constitutional rights were violated.” Johns v. Unemployment Compensation Board of
Review, 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).
10
If an appeal is not filed within 15 days of mailing, the referee and the
Board lack jurisdiction to consider the matter, and the initial eligibility determination
becomes final. Roman-Hutchinson v. Unemployment Compensation Board of
Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009); United States Postal Service v.
Unemployment Compensation Board of Review, 620 A.2d 572, 573 (Pa. Cmwlth.
1993). An appeal filed even 1 day after the 15-day appeal period is untimely and
must be dismissed. Hessou v. Unemployment Compensation Board of Review, 942
A.2d 194, 197-98 (Pa. Cmwlth. 2008).
There is an exception, though, and an appeal nunc pro tunc may be
allowed “where a delay in filing the appeal is caused by extraordinary circumstances
involving fraud or some breakdown in the administrative process, or non-negligent
circumstances related to an appellant or [her] counsel or a third party.” Russo v.
Unemployment Compensation Board of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth.
2010). In cases where a claimant 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 also Stana v. Unemployment Compensation Board of Review, 791 A.2d
1269, 1271 (Pa. Cmwlth. 2002). Further, “[W]here 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).
In this case, Claimant concedes that she received the Revised Financial
Determination prior to the April 26, 2017 appeal deadline and did not file a timely
appeal. Thus, Claimant’s May 17, 2017 appeal was untimely and the Board correctly
11
dismissed her appeal unless Claimant can show that the Board abused its discretion in
dismissing her appeal because she was entitled to nunc pro tunc relief due to
extraordinary circumstances.
With regard to that issue, Claimant contends that an administrative
breakdown occurred because the April 19 phone call led her to believe that a new
financial determination accounting for her OPI wages would be issued. Claimant
states that this phone call, which occurred during the 15-day appeal period, confused
her because the Department’s representative’s purpose for calling her was to inquire
further about her wages with OPI—the very ones she sought to have included in the
Revised Financial Determination.
Claimant argues this confusion was compounded by the May 2 Letter of
Explanation, which erroneously indicated that a newly revised financial
determination had been mailed to her. As noted above, only the first page of this
letter, which Claimant attached to her appeal, appears in the record. In pertinent part,
the Letter of Explanation states,
A thorough investigation has been completed and a
revised Notice of Financial Determination has been
issued to you in a separate mailing. The results of the
investigation are that your financial eligibility has not
changed. The following explains why your financial
eligibility has remained the same.
...
You were free from direction and control over the
performance of your services and were engaged in an
independently established trade, occupation, profession, or
business. Such services do not meet the UC definition of
“employment.” [Section 4(l)(2)(B)].
(C.R. at Item No. 6) (emphasis added). Claimant states that she was confused
because she never received this second revised financial determination, and the
12
explanation she was given by the Department was that she had already received it per
the April 11 Revised Financial Determination. Claimant asserts that this confusion
caused by the Department was sufficient to constitute an administrative breakdown.
In Martyna v. Unemployment Compensation Board of Review, 692 A.2d
594 (Pa. Cmwlth. 1997), a claimant, Carole Martyna, failed to appeal her original
notice of financial determination, which concluded she was ineligible for benefits.
Despite this, however, the Department issued two revised financial determinations in
the following two months, each concluding that she was ineligible for benefits.
Martyna filed an appeal from the final notice of financial determination. Before this
Court, the Board argued that its original financial determination became final when
Martyna failed to appeal. We disagreed, stating
At the very least, we can say that the issuance of two
subsequent determinations of ineligibility was sufficiently
misleading so as to constitute administrative breakdown.
While it was certainly the Board’s prerogative to decide
that Martyna was not told not to file an appeal after
receiving the first notice, since that finding is based on
credibility, the very fact that the Bureau sent two revised
notices well after the original fifteen-day appeal period had
expired leads to the conclusion that it believed it had the
power to do so. If it was mistaken, Martyna should not bear
the consequences of that administrative confusion.
Id. at 597-98.
Similarly, in Waters-Bey v. Unemployment Compensation Board of
Review (Pa. Cmwlth., No. 777 C.D. 2016, filed June 12, 2017),4 the claimant, June
Waters-Bey, filed an untimely appeal to her original notice of financial
determination, finding her ineligible for benefits. Nonetheless, the Department issued
4
Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).
13
a notice of revised standing, vacating her untimely appeal from the original notice of
financial determination while the local service center investigated her financial
eligibility. Days later, the Board dismissed Waters-Bey’s untimely appeal.
Thereafter, the Department issued a revised financial determination again finding her
ineligible for benefits, to which Waters-Bey filed a timely appeal. At a referee
hearing, Waters-Bey testified that she was confused by the revised financial
determination that she received after her appeal from the original was dismissed and,
upon calling the local service center, was told to appeal the revised financial
determination. Ultimately, the Board dismissed her appeal from the revised financial
determination, concluding that its order dismissing her untimely appeal from the
original financial determination superseded any determinations by the Department
and, thus, the Department lacked jurisdiction to issue the revised financial
determination. Waters-Bey appealed and we held that “the timing of the
Department’s subsequent determinations immediately surrounding the Board’s
deliberations on [Waters-Bey]’s appeal [was] sufficiently misleading so as to
constitute a breakdown of the administrative process.” Id., slip op. at 8. We further
emphasized that neither the referee’s, nor the Board’s, decisions were on the merits of
the appeal and instead only addressed the timeliness.
In line with Martyna and Waters-Bey, we can say that the Department’s
May 2, 2017 letter, which erroneously indicated that another letter was forthcoming,
coupled with the phone call from the Department representative, which occurred
during Claimant’s appeal period and in the course of the wage investigation she
sought, but after the Department sent her the Revised Financial Determination, were
sufficiently misleading so as to constitute a breakdown in the administrative process.
The Department was apparently confused about its own procedures as reflected by
14
the timing5 and the indication that it would issue a new revised financial
determination via the May 2 letter which, according to Ms. Hall’s testimony was
false.6 As we said in Martyna, “If [the Department] was mistaken, [Claimant] should
not bear the consequences of that administrative confusion.” Martyna, 692 A.2d at
598. Thus, we remand for a decision on the merits of Claimant’s appeal from the
Revised Financial Determination regarding her wages earned from OPI.
Accordingly, we reverse the Board’s April 9, 2018 order and remand for
a decision on the merits of the issues Claimant raised on appeal.
________________________________
PATRICIA A. McCULLOUGH, Judge
5
See Waters-Bey, slip op. at 8 (“[T]he timing of the Department’s subsequent
determinations immediately surrounding the Board’s deliberations on Claimant’s appeal is
sufficiently misleading so as to constitute a breakdown of the administrative process.”).
6
As noted above, Ms. Hall testified that an additional revised financial determination is
issued only if wages are added or removed from the prior financial determination. (C.R. at Item
No. 32, pp. 15-17, 22.)
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mirsada Begovic, :
Petitioner :
: No. 638 C.D. 2018
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 19th day of February, 2019, the April 9, 2018 order
of the Unemployment Compensation Board of Review is reversed and this matter
is remanded for proceedings consistent with this opinion.
Jurisdiction is relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge