IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Burrell Bryant, :
Petitioner :
:
v. : No. 1576 C.D. 2018
: Submitted: October 11, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: January 17, 2020
Burrell Bryant (Claimant) petitions for review of an September 27, 2018
Order of the Unemployment Compensation (UC) Board of Review (Board) that
dismissed Claimant’s appeal of a Referee’s Decision to the Board as untimely
pursuant to Section 502 of the Unemployment Compensation Law (Law), 43 P.S.
§ 822.1 On appeal, Claimant argues that the Board erred in dismissing his appeal
because Claimant’s employer, Aerotek Inc. (Employer), admittedly reported an
incorrect reason for separation, which led to Claimant being wrongfully denied UC
benefits and assessed a fault overpayment. Based on a review of the record,
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 822 (providing for a 15-day appeal period before a decision by a referee is deemed final).
including Claimant’s admissions that he received the Referee’s Decision and filed
an untimely appeal because he thought an appeal was unnecessary given the facts,
we are constrained to affirm.
I. BACKGROUND
Claimant worked for Employer, a temporary employment agency. On June
4, 2017, Claimant filed an application for UC benefits indicating that he separated
from Employer for lack of work. (Claim Record, Certified Record (C.R.) Item 1.)
On August 15, 2017, Employer submitted information to UC authorities, indicating
that Claimant was discharged for willful misconduct, namely sleeping on the job.
(Service Center Ex. 2, C.R. Item 3.) Upon receipt of this information, the local
Service Center requested additional information from Claimant and Employer to
clarify the discrepancy. On December 7, 2017, the local Service Center sent
Claimant a document entitled “Advance Notice” advising him that his UC benefits
may be temporarily or permanently terminated and he may be subject to an
overpayment because Employer reported Claimant had been discharged. (C.R.
Item 2.) On December 8, 2017, the local Service Center sent Claimant a
questionnaire related to his separation from employment, as well as his
employment for a temporary employment agency. (Id.) On January 2, 2018, the
local Service Center left a voicemail message for Claimant asking him to call the
local Service Center to provide information related to his eligibility. (Id.) There is
no indication in the record that Claimant responded directly to UC authorities
about these requests.
At the same time it was seeking information from Claimant, the local
Service Center was also requesting additional information from Employer. On
2
December 8, 2017, it sent Employer a letter and enclosed two questionnaires about
Claimant’s employment and separation. (C.R. Item 3.) It also faxed a “Notice of
Application and Initial Request for Information” to Employer. Employer did not
respond to any of the requests.
Accordingly, in early January 2018, the local Service Center issued two
notices of determination. The first considered Claimant’s eligibility for benefits
under Section 402(e), 43 P.S. § 802(e), and Section 3 of the Law, 43 P.S. § 752.2
(Notice of Determination, C.R. Item 4.) The local Service Center rendered
Claimant ineligible for benefits based upon him being discharged. (Id.) That
notice of determination was mailed on January 5, 2018, to Claimant at his
Allentown, Pennsylvania address (Allentown address). The notice plainly stated at
2
Section 402(e) provides “[a]n employe shall be ineligible for compensation for any
week . . . [i]n which his unemployment is due to his discharge or temporary suspension from
work for willful misconduct connected with his work.” 43 P.S. § 802(e). Section 3 is a
declaration of public policy and provides:
Economic insecurity due to unemployment is a serious menace to the health,
morals, and welfare of the people of the Commonwealth. Involuntary
unemployment and its resulting burden of indigency falls with crushing force
upon the unemployed worker, and ultimately upon the Commonwealth and its
political subdivisions in the form of poor relief assistance. Security against
unemployment and the spread of indigency can best be provided by the systematic
setting aside of financial reserves to be used as compensation for loss of wages by
employes during periods when they become unemployed through no fault of their
own. The principle of the accumulation of financial reserves, the sharing of risks,
and the payment of compensation with respect to unemployment meets the need
of protection against the hazards of unemployment and indigency. The
Legislature, therefore, declares that in its considered judgment the public good
and the general welfare of the citizens of this Commonwealth require the exercise
of the police powers of the Commonwealth in the enactment of this act for the
compulsory setting aside of unemployment reserves to be used for the benefit of
persons unemployed through no fault of their own.
43 P.S. § 752.
3
the top of the page: “The Last Day to File an Appeal from this Determination is
1/22/18.” (Id.) Three days later, the local Service Center issued a Notice of
Determination Overpayment of Benefits, wherein Claimant was advised he
received $11,571 in UC benefits to which he was not entitled. (C.R. Item 6.) The
local Service Center found it was a fault overpayment because Claimant
“knowingly reported [he was] off due to a lack of work when [he was]
discharged.” (Id.) Similar to the first notice of determination, this notice also
stated at the top of the page: “The final day to timely appeal this determination is
JAN 23, 2018[.]” (Id.) Enclosed with each notice was a page containing appeal
instructions. (C.R. Items 4 & 6.)
A. Claimant’s Appeal to the Referee
Claimant faxed his appeal to the UC authorities on April 27, 2018. (C.R.
Item 7.) The subject line of Claimant’s appeal reads “Past Deadline Appeal.” (Id.)
Therein, he stated that he “received correspondence, in December 2017, that a
pa[s]t employer of [his] . . . submitted information to PA UC that [he] was
terminated for sleeping on the job[,]” and this resulted in him becoming ineligible
for benefits. (Id.) Claimant’s appeal continued that he “confronted . . . [E]mployer
about this” because it was not true and requested Employer retract the information.
(Id.) According to Claimant’s appeal, Employer “immediately admitted an ‘error’”
and “instruct[ed him] to appeal the information[,]” which Employer would not
contest. (Id.) He maintained he responded to UC authorities via mail and fax,
which he thought would preserve his appeal. On March 28, 2018, Claimant stated
he again contacted Employer to request a retraction, which Employer advised it
would do. He then called the UC authorities to inquire whether Employer
4
followed through “and was advised to draft this late appeal request because
[Employer] had not in fact retracted its claim.” (Id.) With his appeal, Claimant
enclosed copies of the email exchanges he had with Employer, dated January 5-8,
2019,3 and March 28, 2018.4 Claimant did not enclose the letter or fax he allegedly
sent to the UC authorities. Nor are there any copies of those documents in the
certified record.
On May 21, 2018, the Referee’s Office called Claimant to verify his address
and Employer’s location. Claimant advised he was working in Tampa, Florida,
until July 1, 2018, and provided a temporary address to be used (Tampa address).
(Report of Telephone call on Hearings, C.R. Item 9.) A notice scheduling a
telephone hearing for June 7, 2018, on the issue of “whether [Claimant] filed a
timely and valid appeal from the initial determination,” was mailed to Claimant at
both the Allentown address and the Tampa address he provided. (C.R. Item 10.)
The letter addressed to the Tampa address was returned as “Not Deliverable as
Addressed[;] Unable to Forward.” (Id.)
Claimant evidently received the notice sent to the Allentown, Pennsylvania,
address because he participated by telephone in the Referee’s hearing on June 7,
2018. Employer did not participate. At the start of the hearing, the Referee
requested Claimant’s mailing address, and he responded by providing the
Allentown address. (Hr’g Tr. at 2, C.R. Item 11.) The Referee inquired as to the
3
In its January 8, 2018, response to Claimant’s email dated January 5, 2018, Employer
acknowledged a “mistake” and advised Claimant “all you have to do is appeal/contest it and we
will not fight it.” (C.R. Item 7.)
4
In this email exchange, Employer advised “We’ll do what we can on our end to correct
and update the information with the Unemployment Department but we do not dictate the
requirements of this agency and you should consider following [its] guidance to remedy the
matter as quickly as possible.” (C.R. Item 7.)
5
Tampa address, and Claimant replied that he anticipated being at that address, but
because of a hurricane, he was not, so he did not want anything mailed to that
address any longer. (Id.)
Claimant testified that he first saw the determinations in January, and upon
receipt, he called Employer for the purpose of “Employer . . . contact[ing] the
Department.” (Id. at 4.) Since nothing occurred, he followed up by email with
Employer so he would have written evidence. Claimant acknowledged Employer
advised him to appeal. When asked by the Referee why Claimant did not do as
Employer advised and file an appeal “to protect [himself],” Claimant responded:
Because in this instance, I didn’t think the -- I was appealing, let’s
say, real information, you know, and I was looking at it from an
information standpoint. Like let’s say if an Employer says you were
fired for being late and I knew that I was only late two times, I wasn’t
late any more than that and both of those times were medical
emergencies, I would look at that as something appealable because,
you know, what they’re saying has truth to it, but I’m arguing -- I
have an argument for that and so I would appeal something like that.
But the information was so false and the Employer had no -- they
didn’t try to argue it or try to say well we have something from the
client that says you were sleeping so -- and they made a mistake is
what I’m saying. And so that’s why I didn't appeal it because I didn’t
think, like, I didn’t like it was a judgment or the determination I was
appealing -- I would have been -- I thought it would’ve been their
information and that’s where I was incorrect.
(Id. at 5.) He further stated that he did not follow Employer’s advice because the
information came from a recruiter, not human resources, who could correct the
error. Claimant testified he subsequently contacted human resources, after which
he followed up with the UC authorities to see if Employer did as it had promised to
remedy the situation. According to Claimant, he was told by the UC authorities
that they “haven’t gotten any information that contests the original claim” and
6
“that person said I really suggest you file a late appeal . . . ,” which Claimant
finally did. (Id.) Because the hearing was to address the timeliness of Claimant’s
appeal, the Referee did not accept evidence on the merits of Claimant’s appeal.
Following the hearing, the Referee issued a Decision dismissing Claimant’s
appeal as untimely. In reaching this conclusion, the Referee made the following
findings of fact:
1. On January 5, 2018, the Service Center issued a Notice of
Determination[,] which found the [C]laimant ineligible to receive
benefits under Section 3 of the . . . Law based on his separation
from his employment with [Employer].
2. January 22, 2018 was the deadline to file an appeal to the Notice
of Determination[,] which disqualified the [C]laimant based on
his separation from employment.
3. On January 8, 2018, the Service Center sent a Notice of
Determination to the [C]laimant[,] which imposed a fault
overpayment of benefits against him in the total amount of
$11,571 under Section 804(a) of the . . . Law for benefits he
received beginning with claim week ending August 12, 2017
through claim week ending December 30, 2017.
4. January 23, 2018 was the deadline to file an appeal to the Notice
of Determination[,] which imposed a fault overpayment of
benefits against the [C]laimant.
5. The Service Center sent the Notices of Determination to the
[C]laimant at his last known mailing address.
6. The [C]laimant contacted the [E]mployer because he disputed the
information contained in the determination regarding sleeping on
the job.
7. By email dated January 8, 2018 the [E]mployer advised the
[C]laimant to file an appeal to the Notice of Determination.
7
8. The [C]laimant later contacted human resources about the
information contained in the determination pertaining to the
discharge.
9. Human resources also directed the [C]laimant to follow the
Department’s procedures.
10. On April 27, 2018, the [C]laimant filed his appeal by facsimile as
indicated by the fax banner.
11. The [C]laimant did not file his appeal on or before the January
22, 2018 and January 23, 2018 deadlines.
(Referee Decision, Findings of Fact (FOF) ¶¶ 1-11.)
Citing Section 501(e) of the Law, 43 P.S. § 821(e), which provides a party
15 days to appeal a notice of determination before it is deemed final, the Referee
found Claimant’s appeal on April 27, 2018, was beyond the January 22 and
January 23, 2018 deadlines. Accordingly, the Referee concluded she lacked
jurisdiction and dismissed the appeal as untimely.
The Referee’s Decision was mailed to the Allentown address that Claimant
verified at the hearing. At the top of the first page and immediately following the
Referee’s Decision, the Decision stated the final date to appeal is June 22, 2018.
(Referee’s Decision at 1, 3.) The Decision detailed the steps a party should take to
perfect an appeal. (Id. at 3-4.)
On the same date the Decision was issued, Employer’s third-party
representative, Equifax, faxed the Referee’s Office a letter, which stated that the
Claimant was not discharged; the reason for separation was lack of work. (C.R.
Item 13.) The letter further stated that Equifax “sent a corrected letter on this
[C]laimant as of 3-30-18 but it [wa]s not at the hearing level.” (Id.) A copy of the
letter Equifax purportedly sent in March 2018 is not part of the certified record.
The Referee’s Office responded by email the same date advising the Decision was
8
already mailed. (June 7, 2018 email to Equifax, C.R. Item 13.) The email further
advised “if [the Decision] is not in your favor, you can request a further appeal
using the instructions in the Decision. If it is in your favor, then the [C]laimant
would have to be the one to file for a further appeal.” (Id.) Employer forwarded
Claimant a copy of the documentation it sent to the Referee via email, but not the
Referee’s response. (C.R. Item 14.)
B. Claimant’s Appeal to the Board
Claimant filed an appeal of the Referee’s Decision on June 25, 2018. In his
email appeal, Claimant included a subject line, which stated “Past Deadline Appeal
18-09-4032,” which referred to the appeal number. (C.R. Item 15.) By letter dated
July 2, 2018, the Board advised Claimant that it received the appeal, but it
appeared untimely. (C.R. Item 16.) The letter further advised Claimant that he
could request a hearing to explain why he believed his appeal was timely. (Id.)
The letter was mailed to Claimant at both the Allentown address and Tampa
address. (Id.) The letter sent to the Tampa address was returned as undeliverable.
(Id.) On July 12, 2018, Claimant emailed the Board and copied Employer. Instead
of asking for a hearing, Claimant appears to direct the email to Employer and
threatens legal action against Employer.5 (July 12, 2018 Email from Claimant,
5
The email stated:
The . . . [B]oard . . . is not giving me relief regarding your clerical error as it
pertains to my separation with [Employer.] At this point I have suffered damages
and I am [in] position to suffer further damages as a result of this error that
[Employer] was unable to initially avoid nor [sic] correct after the fact. Please
forward me the information for your legal department that will handle any action
taken against you over this. Thank you.
(Footnote continued on next page…)
9
C.R. Item 16.) The Board subsequently sent Claimant a second letter on July 13,
2018, virtually identical to its July 2, 2018 letter, advising Claimant that he “must
request in writing that a hearing be scheduled to allow [Claimant] the opportunity
to set forth [his] reasons as to why [he] believe[s] [his] appeal was timely filed.”
(C.R. Item 16 (emphasis omitted).) On July 16, 2018, Claimant emailed the chief
of staff of a state senator and copied Employer and Board on the email. Therein,
he stated that he received notice of an overpayment in January 2018 from the local
Service Center, and reached out to Employer to correct it, but “[t]he clerical error
was never fixed forcing me to file what would be a late appeal.” (July 16, 2018
Email from Claimant, C.R. Item 16.) Claimant further stated he did not appeal
because he would be forced to take off work. (Id.) On July 19, 2018, Claimant
emailed the Board and other UC authorities, calling the Board an “antagonist” that
is “insist[ing] on the continued use of state resources to pursue this [E]mployer[’s]
admittedly false claim.” (C.R. Item 16.) Claimant faxed a copy of the email to the
Board the same date. The fax cover sheet indicates an address in Brookhaven,
Pennsylvania (Brookhaven address). (July 19, 2018 Fax Cover Sheet, C.R. Item
16.) On July 24, 2018, Claimant emailed a state representative and the Board,
asking to further appeal the Referee’s decision. Therein, Claimant states his appeal
was not received until June 25, 2018, “because I had not seen the original letter
with the deadline on it as I have moved from the address it was mailed to.” (July
24, 2018 Email from Claimant, Board Ex. 4, C.R. Item 16.) Claimant provided the
Brookhaven address and requested a telephone hearing. (Id.)
_____________________________
(continued…)
(Id.) The email included a copy of Claimant’s June 25, 2018 appeal to the Board.
10
The Board subsequently issued an order remanding the matter to a referee
(Remand Referee)6 “[t]o schedule a hearing for the purpose of providing
[Claimant] with an opportunity to testify regarding whether [Claimant]’s appeal to
the Board was, or should be accepted as if, timely filed.” (C.R. Item 18.) The
hearing was scheduled for August 28, 2018. At the hearing, the Remand Referee
asked Claimant to provide his address for the record, to which Claimant provided
the Allentown address. (Remand Hr’g Tr. at 1, C.R. Item 20.) The Remand
Referee advised Claimant that the address on file was in Brookhaven and asked
Claimant which address was correct. (Id.) Claimant responded that his permanent
address is the Allentown address, but because he is commuting, he also uses the
Brookhaven address, but either address would work. (Id. at 1-2.)
On the issue of timeliness of his appeal to the Board, Claimant testified as
follows. He did not receive the Referee’s Decision, which was mailed to the
Allentown address, which Claimant admitted was a correct address, as well as his
permanent address. (Id. at 4.) Claimant “was not present at that address at that
time.” (Id.) He called the Board and provided the Brookhaven address. He
believes the Referee’s Office forwarded the Decision to him. He realized that his
appeal was filed late. When asked why he filed a late appeal, Claimant responded:
I filed a late appeal because prior -- the only prior to that, I was trying
to get the state to drop this matter on the account of the Employer not
challenging my unemployment in the first place and my Employer
made the mistake in writing a letter on June 7 th that was sent to
Experian [sic] that said that this should have never went [sic] to a
hearing. So, I spent the whole week trying to get the state to act in a
common sense manner and not have to waste state resources on this.
6
The referee who presided over the remand hearing was not the same Referee who issued
the Decision.
11
(Id. at 5.) Claimant filed his appeal on June 25 after a state legislator’s office
asked him to do so. (Id. at 5-6.) Claimant reiterated that this case should never
have proceeded as far as it did, given Employer’s admitted mistake.
On September 27, 2018, the Board issued its Order, dismissing Claimant’s
appeal of the Referee’s Decision as untimely under Section 502 of the Law. In
reaching this conclusion, the Board made the following findings of fact:
1. On June 7, 2018, a Referee held a hearing at which the
[C]laimant confirmed his permanent mailing address to be [in]
Allentown, PA 18109. He did not offer an alternative address.
2. On June 7, 2018, the Referee issued a decision which dismissed
the [C]laimant’s appeal of the Department’s determinations as
untimely pursuant to Section 501(e) of the . . . Law.
3. A copy of the Referee’s decision was mailed to the [C]laimant at
his last known post office address [in] Allentown, PA 18109, on
the same date.
4. The decision was accompanied by notice advising that the
interested parties had fifteen (15) days in which to file a valid
appeal.
5. There is no indication that the decision mailed to the [C]laimant
was returned by the postal authorities as undeliverable.
6. The [C]laimant’s appeal from the Referee’s decision, in order to
be timely, had to have been filed on or before June 22, 2018.
7. The [C]laimant’s appeal was filed on June 25, 2018, by e-mail.
8. The [C]laimant delayed in filing the appeal because he was not
residing at his address of record.
9. There is no evidence that the [C]laimant was misinformed or
misled by the unemployment compensation authorities regarding
his right or the necessity to appeal.
(Board Order, FOF ¶¶ 1-9.)
12
The Board reasoned that if Claimant was not living at the address he
confirmed with the Referee, he should have provided a different address, and
“[a]ny delay in the [C]laimant’s receipt of the [D]ecision was due to his own
negligence and not to any administrative breakdown.” (Board Order at 2.) Thus,
the Board concluded Claimant did not show he had good cause for filing a late
appeal. The Board further acknowledged Claimant’s argument that Employer
provided the wrong information, which triggered this matter. “However,” the
Board noted, “a breakdown in the administrative process occurs only when the
administrative board or body is negligent, not the employer.” (Id.) The Board
continued that the administrative process is designed to remedy errors, but to do so,
a claimant must file a timely appeal. (Id. (citing Greene v. Unemployment Comp.
Bd. of Review, 157 A.3d 983, 991 (Pa. Cmwlth. 2017)).) Because Section 502 of
the Law is mandatory, and there was no evidence of fraud, non-negligent conduct,
or a breakdown in the administrative system, the Board concluded it lacked
jurisdiction to accept Claimant’s untimely appeal. (Id.) Claimant sought
reconsideration of the Board Order, which the Board denied. (C.R. Items 22-23.)
Claimant now petitions this Court for review of the Board’s Order.
II. PARTIES’ ARGUMENTS
On appeal,7 Claimant argues the merits of his underlying appeal.
Specifically, he challenges whether the Board erred in disregarding evidence that
Employer mistakenly reported he was terminated when the actual reason for
7
“Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review, 87 A.3d
1006, 1009 n.2 (Pa. Cmwlth. 2014).
13
separation was lack of work. He asserts “these proceedings should have never
commenced” and the Board “erred as a matter of ethics in failing to remand this
matter . . . .” (Claimant’s Brief (Br.) at 5.) Claimant disputes the Board’s finding
that he filed the appeal late because he was not living at the Allentown address,
claiming it was because he was trying to resolve this issue amicably. 8 (Id. at 6.)
He admits to filing both of his appeals late, the first on April 27, 2018, appealing
the notices of determination to the Referee, and the second on June 25, 2018,
appealing the Referee’s Decision to the Board. (Id. at 5-6.) However, based upon
Employer’s acknowledged error, Claimant argues the Board’s Order should be
reversed. As for the Board’s reliance on Greene, Claimant asserts Greene “is not
appropriate to use in the discussion for this case because in th[at] case it was
Unemployment whose [sic] alleged to have made the error not the Employer.” (Id.
at 8.) According to Claimant, “[c]ase law where the [e]mployer made an error
during verifying the cause of separation of the employee would have been relevant
. . . .” (Id.)
The Board responds that Claimant has not established good cause for filing
his appeal to the Board late. The Board argues Claimant told the Remand Referee
at the Remand Hearing that he was not present at the Allentown address, which he
confirmed with the Referee at the original hearing was the correct address to send
correspondence. Thus, the Board asserts Claimant has not shown the late appeal
was due to non-negligence. The Board also argues Claimant’s attempts to get
Employer to correct its error instead of appealing does not constitute good cause.
8
Claimant asserts the transcript of the Remand Hearing “was not [his] true testimony.”
(Claimant’s Br. at 2, 6.) Claimant does not elaborate in what way the transcript does not
accurately reflect his testimony, except to note that “[t]he discrepancy in the content of the
transcript has been reported to Dauphin County law enforcement.” (Id. at 6.)
14
The Board, instead, said the “proper route would have been to file a timely
appeal.” (Board’s Br. at 7.) It points out that Claimant has not alleged that the UC
authorities “insinuated to him that an appeal was not necessary.” (Id. at 8.) Nor
does the error by Employer constitute fraud, the Board argues, citing Greene.
Absent fraud or a breakdown by administrative authorities, the Board asks the
Court to affirm its Order.
III. TIMELINESS OF CLAIMANT’S APPEAL
Section 502 of the Law governs an appeal of a referee’s decision to the
Board. It provides, in pertinent part, that “[t]he parties . . . shall be duly notified . .
. 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 . . . .” 43 P.S. § 822 (emphasis added). This
statutory time frame is memorialized in the Department of Labor and Industry’s
regulations as well. See 34 Pa. Code § 101.82(a) (“A party seeking to appeal a
Department determination shall file an appeal . . . on or before the 15th day after
the date on which notification of the decision of the Department was . . . mailed to
him at his last known post office address.”). It is well-settled that “the fifteen-day
time period in which to file an appeal is mandatory. If an appeal is not filed within
that time limit, the determination becomes final, thereby depriving the Board of
jurisdiction over the matter.” UGI Utils., Inc. v. Unemployment Comp. Bd. of
Review, 776 A.2d 344, 347 (Pa. Cmwlth. 2001). Even an appeal that is filed one
day late is untimely. Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d
678, 681 (Pa. Cmwlth. 2003).
15
We have explained that “[a]ppeal periods . . . are jurisdictional and may not
be extended as a matter of grace or indulgence; otherwise, there would be no
finality to judicial action.” Dumberth, 837 A.2d at 681. Therefore, the party
seeking to file a late appeal bears a heavy burden to show that one of the limited
circumstances in which an untimely appeal may be considered exists. Hessou v.
Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008).
Allowable exceptions include fraud or 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.” Bass v. Commonwealth, 401 A.2d
1133, 1135-36 (Pa. 1979). Nunc pro tunc relief for non-negligent conduct is
generally reserved for only those “unique and compelling cases in which the
appellant has clearly established that [the petitioner] attempted to file an appeal,
but unforeseeable and unavoidable events precluded [the petitioner] from actually
doing so.” Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).
Here, the Referee found Claimant’s appeal of the notices of determination
from the local Service Center untimely; the Board then dismissed Claimant’s
subsequent appeal of the Referee’s Decision to it as untimely and did not address
Claimant’s first-level appeal. On appeal to this Court, we address the Board’s
action. The Board’s findings of fact suggest that the Board dismissed Claimant’s
appeal as late because he was not residing at the address Claimant provided to the
Referee. Claimant argues to this Court that his “address was not the issue.”
(Claimant’s Br. at 6 (emphasis in original).) Based upon Claimant’s testimony that
he did not receive the Referee’s Decision mailed to the Allentown address because
he “was not present at that address at that time,” (Remand Hr’g Tr. at 4), we
16
understand the Board’s belief that mailing was an issue. However, based upon
Claimant’s more comprehensive response when asked point-blank by the Remand
Referee why Claimant filed the late appeal, (id. at 5), it is apparent that Claimant
focuses on the same argument he has made throughout these proceedings, namely,
that his Employer committed a blatant error and Claimant had no duty to file an
appeal to correct it. Although the Board’s numbered factual findings do not
address this argument directly, a review of the Board’s “Discussion” section does.
The Board restates Claimant’s position, then concludes that an employer providing
incorrect information does not constitute a breakdown in the administrative process
as required in order to be entitled to nunc pro tunc relief. (Board Order at 2.)
Claimant faults the Board for relying upon this Court’s decision in Greene.
In Greene, a claimant alleged he was told by UC representatives that he was not
entitled to UC benefits for the same time period he was receiving severance pay.
Approximately a year and a half later, the claimant reopened his existing claim and
received a notice of determination stating the severance was deductible. The
claimant did not appeal this determination until nearly three months had passed.
The referee and Board found the claimant’s appeal untimely. On appeal to this
Court, the claimant argued that he was misled by UC representatives and his late
appeal should be accepted as a breakdown in the administrative process. We
disagreed. We first noted that the misinformation must have related to the
necessity to file an appeal. Greene, 157 A.3d at 991. We concluded the alleged
misstatements did not address “the availability, timing[,] or need for an appeal.”
Id. at 992. We next stated that the error was not the equivalent of fraud, but was an
error that “the administrative process was designed to remedy.” Id. at 993 (citation
omitted). Accordingly, we affirmed the Board’s order.
17
Claimant argues Greene is factually dissimilar because it involved an error
by the UC authorities, not an employer, and “[c]ase law where the [e]mployer
made an error during verifying the cause of separation of the employee would have
been relevant.” (Claimant’s Br. at 8.) This Court’s recent decision in DiBello v.
Unemployment Compensation Board of Review, 197 A.3d 819 (Pa. Cmwlth. 2018),
is that case, although it did not involve the employer incorrectly reporting the
reason for separation but instead involved an employer’s error reporting the
number of weeks a claimant worked. Regardless of the nature of the employer’s
error, DiBello controls here.
In DiBello, a claimant filed a claim for UC benefits. A notice of financial
determination was issued wherein a local service center determined she was
financially eligible for 18 weeks instead of 26 weeks. The claimant filed an appeal
of the determination two months late. At a hearing before a referee, the claimant
testified she did not read the notice and contended that her employer misreported
the number of weeks she worked. The referee and subsequently the Board
concluded the claimant’s appeal was untimely. 9 On appeal to this Court, the
claimant argued the Board erred in denying her nunc pro tunc relief based upon the
employer’s error. We held that an “[e]mployer’s error does not constitute [an]
administrative breakdown . . . because [an e]mployer is not an administrative board
or body,” and nunc pro tunc relief is warranted only where there is a breakdown or
fraud by UC authorities. Id. at 822 (citing Pickering v. Unemployment Comp. Bd.
9
In DiBello, the claimant’s appeal was determined untimely pursuant to Section 501(e)
of the Law. Here, the Board dismissed Claimant’s appeal from the Referee’s Decision under
Section 502. Section 501(e) provides for first-level appeals to a referee, whereas Section 502
deals with appeals from a referee’s decision to the Board. The time period in both sections is
identical, 15 days. The analysis for nunc pro tunc relief under either section is also the same.
18
of Review, 471 A.2d 182, 183-84 (Pa. Cmwlth. 1984)). We further held that
misreading a determination does not excuse a late appeal. Id. Accordingly, we
affirmed the Board’s order, dismissing the appeal, as untimely.
Here, there is no dispute Claimant filed a late appeal from the Referee’s
Decision to the Board. The Board remanded the matter to a referee to permit
Claimant an opportunity to explain his late filing. At the remand hearing, Claimant
testified he filed his appeal late because he was “trying to get the state to act in a
common sense manner and not . . . waste state resources on this.” (Remand Hr’g
Tr. at 5.) We understand Claimant’s frustration and appreciate his desire to resolve
this matter amicably; however, based on our precedent, we cannot conclude that
his efforts, regardless of how noble, warrant nunc pro tunc relief. As we stated in
DiBello, an employer’s error is not the equivalent of an administrative breakdown.
Claimant makes no allegation that any UC authorities or representatives misled
him about his rights.10 See Greene, 157 A.3d at 991. We also cannot find that
Claimant acted non-negligently. Claimant admits that he was advised on multiple
occasions by multiple sources to file an appeal disputing Employer’s reported
cause of separation. Employer, itself, cautioned Claimant twice to file an appeal to
the Referee when Claimant first learned of the error. (C.R. Item 7.) Unfortunately,
Claimant did not file the appeal to either the Referee or the Board until the
deadline to appeal had passed and has not met the heavy burden to show one of the
limited circumstances for nunc pro tunc relief exists. Hessou, 942 A.2d at 198.
10
In his appeal of the notices of determination, Claimant testified the UC authorities told
him to file an appeal even though it was late. (C.R. Item 7.)
19
Because “[a]ppeal periods . . . are jurisdictional,” we cannot extend[] [Claimant’s
appeal period] as a matter of grace or indulgence.” Dumberth, 837 A.2d at 681.11
IV. CONCLUSION
These are hard facts. We empathize with Claimant, who has been assessed
an $11,000 fault overpayment based on Employer’s error, but as we stated in
Greene, “the administrative process was designed to remedy” these types of errors.
157 A.3d at 992 (citation omitted). For whatever reasons, beginning with Claimant
apparently not answering the local service center’s requests for information, his
decision not to file timely appeals of the service center determinations,
notwithstanding being told to file an appeal, and culminating in his late appeal to
the Board, Claimant did not try to comply with that process. Timely filing an
appeal from an order is essential to take advantage of that process. Constantini v.
Unemployment Comp. Bd. of Review, 173 A.3d 838, 844 (Pa. Cmwlth. 2017)
11
The dissent proposes treating Claimant’s Petition for Review as a request for writ of
error coram nobis, which is an “ancient writ.” McKnight v. Dep’t of Transp., 549 A.2d 1356,
1358 (Pa. Cmwlth. 1988). It is used “to nullify or reform a judgment” and “lies only where facts
exist extrinsic of the record, unknown and unknowable by the exercise of diligence at the time of
its rendition, and which would, if known, have prevented the judgment either in its entirety or in
the form in which it was rendered.” Commonwealth v. Harris, 41 A.2d 688, 690 (Pa. 1945). To
avail one “of the remedy of a writ of error coram nobis he must show that it was by no fault or
negligence of his that the error in fact assigned was not made to appear at the former trial.” Id. at
691. Unfortunately, that is not the case here. While Claimant did not contribute to the initial
misreporting of the error, before the fault overpayment was found, Claimant was contacted by
the local Service Center to respond and did not. Accordingly, the Service Center acted upon the
information it had before it and found Claimant ineligible. Aware of the Service Center’s
determination, Claimant did not timely seek appeal to the Referee. He further did not timely
seek appeal of the Referee’s decision to the Board. Had he responded in the first instance, or
second or third instance, Claimant could have presented evidence in support of his position. As
stated by the Superior Court in Commonwealth v. Taylor, 165 A.2d 390, 391 (Pa. Super. 1960),
“a petition for writ of error coram nobis . . . cannot be used as . . . a substitute for an appeal.”
20
(“Failure to timely appeal an administrative agency’s action is a jurisdictional
defect . . . .”). It is difficult for the Court to have to affirm here, but, Claimant’s
appeal of the Notice of Determination admittedly was not timely, and Claimant has
not provided reasons that, under our precedent, satisfy the “heavy burden” to show
one of the limited circumstances for nunc pro tunc relief exists. Hessou, 942 A.2d
at 198. Bound by the law, we are constrained to affirm the Board’s Order,
dismissing Claimant’s appeal.
_____________________________________
RENÉE COHN JUBELIRER, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Burrell Bryant, :
Petitioner :
:
v. : No. 1576 C.D. 2018
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, January 17, 2020, the Order of the Unemployment Compensation
Board of Review, dated September 27, 2018, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Burrell Bryant, :
Petitioner :
:
v. : No. 1576 C.D. 2018
: Submitted: October 11, 2019
Unemployment Compensation Board :
of Review, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 17, 2020
The Department of Labor and Industry (Department) has taken the
extreme position that it must permanently close an unemployment compensation file
16 days after a staff person makes a decision unless a party with standing has
requested an administrative hearing. This is so even when all parties with standing
concede that the staff decision was based upon erroneous information. Simply, the
Department’s position betrays the public trust. A hearing is a mechanism designed
to resolve a controversy between the parties, not to insulate the staff from correcting
its records. Respectfully, I dissent from the majority’s decision.
The Department contends that Burrell Bryant (Claimant) must refund
the $11,571 in unemployment benefits he received even though the parties agree that
Claimant was entitled to those benefits. Indeed, Claimant’s separating employer,
Aerotek, Inc. (Employer), notified the Department in writing that its agent, Equifax,
incorrectly stated on the “State Information Data Exchange System” that Claimant
was discharged for misconduct when, in actuality, he lost his job for lack of work.
Notwithstanding Employer’s explanation and correction of Equifax’s erroneous on-
line report, the Department insists that Claimant is liable for a “fault overpayment.”
This insistence constitutes an abuse of prosecutorial discretion and abdication of the
Department’s responsibility to administer Pennsylvania’s unemployment
compensation program. Indeed, the Department’s position shocks the conscience.
In June of 2017, the Department granted unemployment benefits to
Claimant upon his separation from Employer. In August of 2017, Employer’s agent,
Equifax, reported on the “State Information Data Exchange System” that Claimant
had been dismissed for sleeping on the job. In December of 2017, the Department
sought more information, but neither Claimant nor Employer responded. However,
in January of 2018, Claimant contacted Employer, which acknowledged its error. In
March, Employer so notified Claimant in writing. In June of 2018, Equifax sent a
letter to the Department about Claimant’s separation from Employer that stated
“[T]his is NOT a discharge. This is a lack of work.” Certified Record, Item 13 at 1.
The letter further stated, “It shouldn’t have gone to the hearing level because this is
a lack of work.” Id.
On January 8, 2018, the Department determined that Claimant was not
entitled to any benefits and had to refund the benefits he had received, i.e., $11,571.
It is this determination that the Department refuses to revise in spite of the written
acknowledgment from Employer that its agent made a mistake and that Claimant
was entitled to the benefits he received.
First, the staff’s determination that Claimant has a debt of $11,571 was
arbitrary. Claimant stated to the Department, under penalty of law, that his
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separation from employment was caused by lack of work. After Department staff
found Equifax’s contrary on-line statement on Claimant’s separation, it requested
more information. In spite of Employer’s silence, the staff arbitrarily credited
Equifax’s on-line statement over Claimant’s verified statement. The Department’s
bias in handling this matter in itself raises a due process problem. As does the
Department’s retroactive revocation of Claimant’s benefits without a prior hearing.
Second, the Department, which is a party in every unemployment
compensation matter, at every stage, has an obligation to act upon the corrected
information in its capacity as administrator of the unemployment compensation
program and prosecutor where there exists a dispute. Section 502 of the
Unemployment Compensation Law (Law)1 states that the Unemployment
Compensation Board of Review (Board) must “afford[] the parties and the
[D]epartment reasonable opportunity for a fair hearing[.]” 43 P.S. §822 (emphasis
added). The statute also requires that the “parties and their attorneys or other
representatives of record and the [D]epartment shall be duly notified of the time and
place of a referee’s hearing and of the referee’s decision[.]” Id. (emphasis added).
Following a decision by a referee or the Board, “the claimant, the Department or an
affected employer” each has the right to appeal. 34 Pa. Code §101.90 (emphasis
added). In short, the Department, which granted Claimant benefits and then reversed
itself, has been a silent, but present, participant in this case.2 Once the Department
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
2
The Department appeals referee decisions where it disagrees with the referee’s application of the
law. See, e.g., Frimet v. Unemployment Compensation Board of Review, 78 A.3d 21 (Pa. Cmwlth.
2013) (Department intervened before Board to contest referee’s award of benefits).
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learned of the error in its own official records, it should have immediately withdrawn
its notice of determination of a fault overpayment. Instead, the Department
continues to advance the fiction that Claimant is liable to the Department for a debt
of $11,571.
In DiBello v. Unemployment Compensation Board of Review, 197 A.3d
819 (Pa. Cmwlth. 2018), the Department asserted that it cannot correct an error in
benefit amount because corrections can only be made via an administrative hearing.
This is an unfounded and incorrect assumption. The administrative remedy was
created to resolve controversies, not to ossify the Department’s records. The
existence of a quasi-judicial remedy does not relieve the Department of its
responsibility as the administrator of the unemployment compensation program to
respond to reasonable requests. By the Department’s logic, a claimant who
discovers he was overpaid benefits cannot return the overpayment if he makes the
discovery more than 15 days after the grant of benefits.
Assuming, arguendo, the staff determination that Claimant owes the
Department $11,571 is a quasi-judicial decision, it is not written in stone, any more
than a judicial verdict is so written. Under the common law writ of coram nobis, a
court can correct its judgment upon discovery of a fundamental factual error that
was unknown and unknowable in the original proceedings. See Commonwealth v.
Harris, 41 A.2d 688 (Pa. 1945). The Department has a duty to supervise the
unemployment compensation program in accordance with Section 3 of the Law,
which provides financial security to employees who lose their jobs through no fault
of their own. 43 P.S. §752. Converting a staff action to an adjudication does not
provide the Department absolute cover, as it seems to believe.
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The Department should correct its determination in accordance with the
information provided by Employer and withdraw its administrative determination of
January 8, 2018, that Claimant owes it $11,571. As our Supreme Court explained
in Miller v. Unemployment Compensation Board of Review, 476 A.2d 364, 366 (Pa.
1984), “[w]e have long refused to give overly technical, restrictive readings to
procedural rules, particularly when remedial statutes such as the Unemployment
Compensation [Law] are involved.” Instead, the Department insists on illegally
pursuing a debt it knows to be unfounded.
Claimant was deprived the due process of law guaranteed to him. That
every claimant has a right to an administrative hearing under the Law is beside the
point. There must be a controversy between the parties over whether unemployment
benefits were properly awarded for the hearing remedy to have any relevance. Here,
there was no controversy about Claimant’s eligibility for benefits until the
Department staff acted, incorrectly and sua sponte, to create one. By refusing to
correct an error in its own records that results in the taking of a claimant’s property
without a hearing, the Department invites litigation under 42 U.S.C. §1983.
I would reverse the Board’s dismissal of Claimant’s appeal. I would
hold that when the Department is notified of a mistake, as it was here, it must issue
a decision on the merits instead of asserting it lacks jurisdiction. Only after it makes
a merits decision would the 15-day period for an appeal, by the claimant or the
employer, begin to run. Alternatively, I would treat Claimant’s petition for review
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as a request for writ of coram nobis and direct the Department to dissolve its
determination that Claimant has a debt for a fault overpayment.3
_____________________________________
MARY HANNAH LEAVITT, President Judge
3
The majority posits that a writ of coram nobis is not a substitute for an appeal and cites cases that
reject the use of this extraordinary writ in place of a timely appeal. In those cases, however, the
petitioner received a record hearing and a judgment was entered. See Commonwealth v. Harris,
41 A.2d 688 (Pa. 1945) (jury trial and conviction of first-degree murder); McKnight v. Department
of Transportation, 549 A.2d 1356 (Pa. Cmwlth. 1988) (denial of statutory appeal of driver’s
license suspension); Commonwealth v. Taylor, 165 A.2d 390 (Pa. Super. 1960) (guilty plea and
sentence of imprisonment). In the case sub judice, the determinative, and erroneous, finding on
the reason for Claimant’s separation from employment was made by unknown Department staff
on the basis of an unverified report announced by Equifax in cyberspace. The Pennsylvania
Constitution guarantees that “every man for an injury done him in his lands, goods, person or
reputation shall have remedy by due course of law.” PA. CONST. art. I, §11. Further, our Judicial
Code guarantees a right of appeal from a “final order” of every “[g]overnment unit which is an
administrative agency … to the court having jurisdiction of such appeals.” 42 Pa. C.S.
§5105(a)(2). The writ of coram nobis was developed to avert a miscarriage of justice, such as the
instant case.
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