K. Dzurinko v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristen Dzurinko, :
: No. 1218 C.D. 2015
Petitioner : Submitted: January 8, 2016
:
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: February 24, 2016
Kristen Dzurinko (Claimant) petitions for review, pro se, of the May 13,
2015, order of the Unemployment Compensation Board of Review (UCBR) affirming
the decision of a referee to dismiss Claimant’s appeal as untimely under section
501(e) of the Unemployment Compensation Law (Law).1 We affirm.
On July 6, 2014, Claimant filed a claim for unemployment compensation
(UC) benefits. (Notice of Overpayment, 2/12/15, at 1.) On February 12, 2015, the
UC service center issued a determination finding Claimant ineligible for benefits
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e).
under section 402(b) of the Law, 43 P.S. §802(b), beginning with the claim week of
November 29, 2014, because Claimant voluntarily quit her employment with C & J
Clark Retail, Inc. (Employer). (Findings of Fact, No. 1; Notice of Determination,
2/12/15, at 1.)
Also on February 12, 2015, the UC service center issued a determination
finding that Claimant received a $2,527 fault overpayment under section 804(a) of
the Law, 43 P.S. §874(a). (Findings of Fact, No. 2.) The UC service center mailed
the two notices of determination (notices) to Claimant’s last known post office
address on February 12, 2015. (Id., No. 3.) The notices were not returned as
undeliverable. (Id., No. 4.) Both notices informed Claimant that she had until
February 27, 2015, to file an appeal. (Id., No. 6.) Claimant filed one appeal of both
determinations to the referee on March 4, 2015. (Id., No. 7.)
The referee conducted a hearing on April 2, 2015, at which only
Claimant testified. The referee found that the notices neither misinformed nor misled
Claimant regarding the right of or need to appeal. (Id., No. 8.) Because Claimant did
not file her appeal within 15 days of the local service center’s determination, the
referee dismissed Claimant’s appeal as untimely under section 501(e) of the Law.
Claimant appealed to the UCBR.
The UCBR adopted and incorporated the referee’s findings of fact and
conclusions of law and summarized Claimant’s testimony. Claimant testified that she
did not realize that she missed the appeal deadline because she “‘had a lot on [her]
plate at that time.’” (UCBR’s Decision, 5/13/15, at 1 (citation omitted).) Claimant
2
was going to school and working a full-time job. (Id.) The UCBR affirmed the
referee’s decision. Claimant now petitions for review of that decision.2
On appeal, Claimant concedes that her appeal was untimely under
section 501(e) of the Law. Nonetheless, Claimant asserts that she had a good reason
for her untimely appeal because she was attending school and working full-time.
Section 501(e) of the Law provides that an appeal from the local UC
service center’s notice of eligibility determination must be filed “within fifteen
calendar days after such notice was delivered.” 43 P.S. §821(e). This time period is
jurisdictional and precludes both the referee and the UCBR from further
consideration of the matter. Gannett Satellite Information Network, Inc. v.
Unemployment Compensation Board of Review, 661 A.2d 502, 504 (Pa. Cmwlth.
1995).
“A statutory appeal period is mandatory and may not be extended as a
matter of grace or mere indulgence.” Russo v. Unemployment Compensation Board
of Review, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). Claimant essentially requests to
proceed nunc pro tunc. A nunc pro tunc appeal will be allowed only when the
“‘delay in filing the appeal [was] caused by extraordinary circumstances involving
fraud or some breakdown in the administrative process, or non-negligent
2
Because Claimant had the burden of proving the timeliness of her appeal and was the only
party to present evidence at the hearing, our review is limited to determining whether the UCBR
capriciously disregarded competent evidence, whether constitutional rights were violated, or
whether the UCBR committed an error of law. Wright v. Unemployment Compensation Board of
Review, 41 A.3d 58, 62 n.5 (Pa. Cmwlth. 2011).
3
circumstances related to an appellant or his [or her] counsel or a third party.’” Id.(citation omitted.)
Here, the record supports the UCBR’s finding that Claimant was neither
misinformed nor misled by the local service center’s notices regarding her right of or
need to appeal. Further, Claimant admits that the untimeliness of her appeal was
caused by her own busy schedule, not by extraordinary circumstances involving non-
negligent acts, fraud, or a breakdown in the administrative process. Therefore, the
UCBR correctly dismissed Claimant’s appeal as untimely.
Accordingly, we affirm.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kristen Dzurinko, :
: No. 1218 C.D. 2015
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, :
:
Respondent :
ORDER
AND NOW, this 24th day of February, 2016, we hereby affirm the May
13, 2015, order of the Unemployment Compensation Board of Review.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge