D. Hughey v. WCAB (Andorra Woods Healthcare Center) ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debbie Hughey, :
Petitioner :
:
v. :
:
Workers’ Compensation Appeal :
Board (Andorra Woods Healthcare :
Center, Gallagher Bassett Services, :
Ace American Insurance Company, :
Uninsured Employer’s Guaranty Fund, :
and Rest Haven Nursing Center), : No. 303 C.D. 2017
Respondents : Submitted: December 22, 2017
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: January 31, 2018
Debbie Hughey (Claimant) petitions this Court, pro se, for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) January 13, 2017 order
affirming Workers’ Compensation Judge (WCJ) Joseph Hagan’s (Hagan) decision
denying Claimant’s three Penalty Petitions (Penalty Petitions) and Petition to
Reinstate Compensation Benefits (Reinstatement Petition) (collectively, Petitions).
There are two issues before this Court: (1) whether Claimant’s appeal was timely
filed; and, (2) whether the Board erred by affirming WCJ Hagan’s denial of
Claimant’s Petitions.1 After review, we dismiss Claimant’s appeal.
On December 5, 2011, Claimant sustained work-related injuries in the
course and scope of her employment as a registered nurse for Lyric Health
Care/Andorra Woods Healthcare Center (Employer). On January 4, 2012, Employer
1
Claimant listed numerous issues in her Petition for Review, Statement of Questions
Involved and her Summary of Argument which will be discussed more fully below.
issued a medical-only Notice of Compensation Payable accepting injuries described
as multiple strains/sprains. On January 13, 2012, Claimant filed a claim petition
alleging injuries to her low back, left knee, neck and shoulders, and full disability
beginning December 5, 2011. The claim petition was withdrawn by counsel who is
no longer representing Claimant. On May 10, 2012, Employer filed a termination
petition. Employer filed a request for supersedeas that WCJ Stephen Harlen (Harlen)
denied on June 18, 2012.
The case was reassigned to WCJ Hagan after WCJ Harlen recused.2 By
January 28, 2015 order, WCJ Hagan granted Employer’s supersedeas request as to
indemnity benefits. Claimant, pro se, appealed from the grant of supersedeas, and
Claimant’s former counsel requested reconsideration at a hearing on March 2, 2015.
The Board dismissed Claimant’s appeal from the grant of supersedeas because it was
an interlocutory order.
Thereafter, Claimant filed a motion seeking WCJ Hagan’s recusal. On
May 18, 2015, WCJ Hagan held a hearing on the recusal motion. On May 21, 2015,
WCJ Hagan denied Claimant’s recusal motion and set a new briefing schedule.
Claimant appealed from the May 21, 2015 order to the Board, and Employer filed a
motion to quash. By August 31, 2015 order, the Board granted Employer’s motion to
quash and dismissed Claimant’s appeal. Claimant appealed to this Court, and
Employer filed another motion to quash. By February 10, 2016 order, this Court
granted Employer’s motion and dismissed the appeal. Claimant petitioned for
allowance of appeal to the Pennsylvania Supreme Court, which was denied.
When the record closed before WCJ Hagan in 2015, more than 40
petitions had been filed. Claimant had filed 27 penalty petitions, 5 review petitions, 2
modification petitions, a medical review petition and a reinstatement petition.
2
WCJ Harlen recused himself in December 2014, after Claimant filed complaints against
him and numerous attorneys for alleged ethical violations.
2
Employer filed a termination petition and 2 review petitions. All the petitions were
consolidated and, in December 2015, WCJ Hagan issued 2 decisions granting
Employer’s petitions and denying Claimant’s petitions. On December 4, 2015, WCJ
Hagan denied the Penalty Petitions and the Reinstatement Petition as duplicative and
repetitious. Claimant appealed from both decisions to the Board which, on January
13, 2017, affirmed WCJ Hagan’s decisions. In its Opinion, the Board notified
Claimant that she had 30 days from the mailing date of January 13, 2017, to appeal to
the Commonwealth Court.
On February 16, 2017, Claimant filed a letter with this Court stating that
she tried to file an appeal from the Board’s January 13, 2017 order through PACFile,3
but it was rejected (February 16, 2017 Letter). Claimant subsequently filed her
Petition for Review.4 By April 21, 2017 order, this Court directed the parties to
address in their principal briefs on the merits whether the appeal is timely.
We note that [Claimant] waited until [she filed] h[er] reply
brief to raise a number of arguments as to why h[er]
[appeal] should not be dismissed as untimely. The
opportunity for, and the extent of, a reply brief is limited.
The Pennsylvania Rules of Appellate Procedure make clear
that an ‘appellant may file a brief in reply to matters raised
by appellee’s brief not previously raised in appellant’s
brief.’ Pa.R.A.P. 2113(a). Thus, an appellant is prohibited
from raising new issues in a reply brief. Moreover, a reply
brief cannot be a vehicle to argue issues raised but
inadequately developed in appellant’s original brief. 16
Standard Pennsylvania Practice 2d § 89.5; see Leonard S.
Fiore, Inc. v. [Dep’t] of Labor [&] Indus[.], Prevailing
Wage Appeals [Bd.], . . . 585 A.2d 994 ([Pa.] 1991) (motion
3
PACFile is a service that provides parties the ability to electronically file documents on
both new and existing cases with the Pennsylvania courts.
4
“On review[,] this Court must determine whether constitutional rights were violated, errors
of law were committed, or necessary findings of fact were supported by substantial competent
evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6
(Pa. Cmwlth. 2014).
3
to suppress portions of appellant’s reply brief which
reargued issues previously raised and argued in appellant’s
brief granted); Park v. Chronister, . . . 617 A.2d 863, 871
([Pa. Cmwlth.] 1992) . . . . When an appellant uses a reply
brief to raise new issues or remedy deficient discussions in
an initial brief, the appellate court may suppress the non-
complying portions. Pa.R.A.P. 2101. If the defects in a
brief are substantial, appellate courts have the discretion to
quash or dismiss the appeal. Pa.R.A.P. 2101; see Grosskopf
v. [Workmen’s Comp. Appeal Bd.] (Kuhns M[kt.]), 657 A.2d
124 (Pa. Cmwlth. 1995) . . . . ; Commonwealth v. Taylor, . .
. 451 A.2d 1360 ([Pa. Super.] 1982). The onus of
complying with the rules of appellate procedure falls
entirely on [appellant], who may suffer consequences from
committing prejudicial errors.
Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999).
Notwithstanding, in the “Summary of the Arguments” [sic] portion of
Claimant’s reply brief,5 she asserted:
[Claimant] did timely file her [a]ppeal[]. The PACFile
System blocked her from filing it electronically. Then, the
date that the Court’s [p]ersonnel listed in the record is the
date that they claimed that they received it; whereas, it was
postmarked on the [sic] February 13, 2017; still making it
timely.
Claimant Reply Br. at 11. The above-quoted language is Claimant’s entire timeliness
argument.
With respect to whether Claimant’s appeal should be deemed filed on
the date it was postmarked, i.e., the mailbox rule, Pennsylvania Rule of Appellate
Procedure 121(a) provides, in relevant part:
A pro se filing submitted by a prisoner incarcerated in a
correctional facility is deemed filed as of the date it is
delivered to the prison authorities for purposes of mailing or
placed in the institutional mailbox, as evidenced by a
properly executed prisoner cash slip or other reasonably
5
This is the only place in Claimant’s reply brief where the timeliness issue is mentioned.
4
verifiable evidence of the date that the prisoner deposited
the pro se filing with the prison authorities.
Pa.R.A.P. 121(a) (emphasis added). Because Claimant is not a prisoner incarcerated
in a correctional facility, and there is no other Appellate Rule permitting its use, the
mailbox rule does not apply herein.
Relative to PACFile rejecting Claimant’s appeal, according to
Claimant’s February 16, 2017 Letter, her appeal was rejected because she was
seeking to file in forma pauperis (IFP), and IFP filings must be submitted on paper.
Although this may explain why Claimant could not PACFile, it does not excuse her
late filing.
It is well[-]established that failure to timely appeal an
administrative agency’s action is a jurisdictional defect;
consequently, the time for taking an appeal cannot be
extended as a matter of grace or mere indulgence.
Sofronski v. Civil Serv[.] Comm[’n], City of Phila[.], 695
A.2d 921 (Pa. Cmwlth. 1997). An appeal nunc pro tunc
may be allowed where the delay in filing the appeal was
caused by extraordinary circumstances involving fraud or
some breakdown in the administrative process, or non-
negligent circumstances related to the appellant, his or her
counsel or a third party. Cook v. Unemployment Comp[.]
[Bd.] of Review, . . . 671 A.2d 1130 ([Pa.] 1996); Sofronski.
H.D. v. Pa. Dep’t of Pub. Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000).
Here, Claimant attempted to file her appeal electronically the Saturday
before the deadline. The fact that she could not do so via PACFile because of her
request to file IFP, while unfortunate, is not “fraud or some breakdown in the
administrative process, or non-negligent circumstances related to the appellant, . . .
her counsel or a third party . . . .” Id. Rather, the untimeliness was due to Claimant’s
negligence in not determining in advance whether she could file her appeal
electronically, and in waiting until the Saturday before the deadline to attempt to
5
PACFile. Under the circumstances, this Court is constrained to hold that Claimant’s
appeal is untimely.
Nevertheless, had Claimant’s appeal been timely filed, she waived the
issues she sought to raise on appeal. Claimant’s Petition for Review sets forth
numerous “base[s]” for appeal, including but not limited to, “discrimination, fraud,
violations[ and] collusion[.]” Petition for Review at 1. Claimant’s “Statement of
Questions Involved” includes three issues involving the “Uninsured Employer
Guaranty Fund[.]” Claimant Br. at 6. Claimant’s “Summary of Argument” lists nine
issues,6 including but not limited to, “illegally chang[ing] the [c]aption and the
[p]arties in the [WC c]ases . . . .”7 Claimant Br. at 12. None of the issues Claimant
presented in her Petition for Review are the same as those raised in her brief, and
none of the issues listed in her Statement of Questions Involved correspond to those
raised in her Summary of Argument. Moreover, none of the issues Claimant raised
are supported by any analysis or legal authority.8
It is well-settled that if an issue is not raised in a petition for
review, then the issue is waived for purposes of appellate
review, even if a petitioner addresses the issue in his brief.
[See] Pa.R.A.P. 1513; Jimoh v. Unemployment Comp[.]
[Bd.] of Review, 902 A.2d 608 (Pa. Cmwlth. 2006)
(concluding that an issue argued in the brief on appeal, but
not raised in the petitioner’s petition for review or fairly
comprised therein is waived).
6
Claimant’s issues are numbered: 1, 2, 3, 4, 5, 6, 9, 10, and 11. See Claimant Br. at 12-15.
It appears the brief originally included an additional page which Claimant excluded and then
renumbered the remaining pages. See Claimant Br. at 15-16.
7
The Summary of Argument section of a brief is not the proper location for a party to list
the issues before the Court. See Pennsylvania Rules of Appellate Procedure 2116 and 2118,
Pa.R.A.P. 2116, 2118.
8
Claimant’s brief does not include an Argument section as required by Pennsylvania Rule
of Appellate Procedure 2111.
6
Glunk v. Dep’t of State, 102 A.3d 605, 611 (Pa. Cmwlth. 2014). Further, because the
issues raised in Claimant’s Petition for Review and in her Summary of Argument are
missing from her Statement of Questions Involved,
[they are] waived. Williams v. Workers’ Comp[.] Appeal
[Bd.] (USX Corp[.]-Fairless Works), 862 A.2d 137, 141
(Pa. Cmwlth. 2004) (‘[c]laimant has failed to raise this issue
anywhere within his Statement of the Questions Presented,
and for that reason, it is waived.’); Pa.R.A.P. 2116(a) (‘No
question will be considered unless it is stated in the
statement of questions involved or is fairly suggested
thereby.’).
Glunk, 102 A.3d at 611 n.17. Finally,
[Claimant] has failed to adequately develop [any] issue[] in
h[er] brief as required by Rule 2119(a) of the Pennsylvania
Rules of Appellate Procedure, which states:
The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the
head of each part - in distinctive type or in type
distinctively displayed - the particular point treated
therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a) (emphasis added). Additionally, this
Court has held, ‘[w]hen issues are not properly raised and
developed in briefs, when the briefs are wholly inadequate
to present specific issues for review, a court will not
consider the merits thereof.’ Commonwealth v. Feineigle,
690 A.2d 748, 751 n.5 (Pa. Cmwlth. 1997). ‘Mere issue
spotting without analysis or legal citation to support an
assertion precludes our appellate review of [a] matter.’
Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n.11
(Pa. Cmwlth. 2002). The issues cited above are conclusory
statements with no supporting analysis or citation to legal
authority.
Boneilla v. Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008).
Accordingly, even if Claimant’s appeal was timely filed, there are no issues for this
Court to address.
7
For all of the above reasons, Claimant’s appeal is dismissed as
untimely.9
Judge McCullough did not participate in the decision in this case.
9
Based upon this Court’s disposition of the timeliness issue, it need not address the second
issue.
On September 1, 2017, Claimant filed an application for supersedeas. By September 12,
2017 order, this Court denied Claimant’s supersedeas application “for failure to allege that the
[Board] previously denied the relief [Claimant] seeks from the [C]ourt.” September 12, 2017
Order. On December 22, 2017, Claimant filed a second application for supersedeas (Application).
Based on the above disposition, the Application is denied as moot. Notwithstanding, the
Application would have been denied because Claimant, again, failed to allege that the Board
previously denied the relief she seeks from this Court. See Pa.R.A.P. 1781(a).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Debbie Hughey, :
Petitioner :
:
v. :
:
Workers' Compensation Appeal :
Board (Andorra Woods Healthcare :
Center, Gallagher Bassett Services, :
Ace American Insurance Company, :
Uninsured Employer's Guaranty Fund, :
and Rest Haven Nursing Center), : No. 303 C.D. 2017
Respondents :
PER CURIAM
ORDER
AND NOW, this 31st day of January, 2018, Debbie Hughey’s (Claimant)
appeal is dismissed and Claimant’s second application for supersedeas is denied as
moot.