M. F. Russo v. UCBR ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Madeline F. Russo, :
Petitioner :
:
v. : No. 1676 C.D. 2017
: SUBMITTED: July 12, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: August 29, 2019
Madeline F. Russo (Claimant) petitions for review of the November 8, 2017
Order of the Unemployment Compensation Board of Review (Board) denying her
Request for Reconsideration of the Board’s October 12, 2017 Order, which affirmed
the decision of a Referee to deny Claimant’s claim for unemployment compensation
(UC) benefits under Section 401(d)(1) of the Unemployment Compensation Law
(Law), 43 P.S. § 801(d)(1).1 Also before this Court is the Board’s Application for
Summary Relief, asking this Court to affirm the Board’s November 8, 2017 Order
because Claimant has waived any challenge to the propriety of that Order. For the
reasons that follow, we grant the Board’s Application for Summary Relief and affirm
the Board’s November 8, 2017 Order.
1
Section 401(d)(1) of the Law provides that unemployment “[c]ompensation shall be
payable to any employe who is or becomes unemployed, and who . . . [i]s able to work and
available for suitable work.” 43 P.S. § 801(d)(1).
Background
On July 12, 2017, after a hearing, the Referee issued an Order denying
Claimant’s claim for UC benefits. Record (R.) Item No. 10.2 Claimant timely
appealed to the Board, which affirmed the Referee’s decision on October 12, 2017.
Id. Nos. 11, 12. On October 16, 2017, Claimant filed a Request for Reconsideration
with the Board. Id. No. 13. The Board denied Claimant’s Request for
Reconsideration on November 8, 2017. Id. No. 14.
On November 15, 2017, Claimant filed a Petition for Review with this Court,
challenging the Board’s October 12, 2017 Order. In response, the Board filed an
Application to Quash Claimant’s appeal as untimely, arguing that Claimant’s
Petition for Review was filed more than 30 days after the Board’s October 12, 2017
Order. On February 6, 2018, this Court denied the Board’s Application to Quash,
stating that although Claimant’s appeal from the Board’s October 12, 2017 Order
was untimely, Claimant timely appealed within 30 days of the Board’s November 8,
2017 Order denying reconsideration.
Thereafter, the Board filed with this Court an Application for Summary
Relief, asserting that Claimant waived any challenge to the Board’s November 8,
2017 Order by failing to argue – in either her Petition for Review or her appellate
brief – that the Board abused its discretion in denying her Request for
Reconsideration. The Board claims that it is entitled to summary relief because
Claimant waived the only issue properly before this Court. Claimant did not file an
answer to the Board’s Application for Summary Relief. On May 22, 2018, this Court
2
Given the procedural posture of this appeal, we do not address herein the Board’s findings
of fact or conclusions of law relating to Claimant’s claim for UC benefits because, as explained
infra, we are not permitted to review the merits of the Board’s underlying decision on the UC
claim.
2
directed that the Application for Summary Relief be considered in conjunction with
Claimant’s Petition for Review.
Analysis
Pennsylvania Rule of Appellate Procedure 1532(b) states that “[a]t any time
after the filing of a petition for review in an appellate or original jurisdiction matter[,]
the court may on application enter judgment if the right of the applicant thereto is
clear.” Pa. R.A.P. 1532(b). In ruling on an application for summary relief, we must
view the evidence in the light most favorable to the non-moving party and may enter
judgment only if: (1) there are no genuine issues of material fact, and (2) the right
to relief is clear as a matter of law. Nw. Youth Servs., Inc. v. Dep’t of Pub. Welfare,
1 A.3d 988, 990 n.1 (Pa. Cmwlth. 2010), aff’d, 66 A.3d 301 (Pa. 2013).
In its Application for Summary Relief, the Board contends that Claimant has
waived any challenge to the Board’s November 8, 2017 Order denying her Request
for Reconsideration because she makes no argument on appeal relating to the denial
of reconsideration. We agree with the Board.
It is well settled that our scope of review of an order denying reconsideration
is “limited to determining whether the [Board] abused its discretion.” Georgia-
Pacific Corp. v. Unemployment Comp. Bd. of Review, 630 A.2d 948, 951 (Pa.
Cmwlth. 1993). The party alleging an abuse of discretion bears the burden of
showing that “the [Board’s] decision demonstrates evidence of bad faith, fraud,
capricious action[,] or abuse of power.” Id.
In both her Petition for Review and her appellate brief, Claimant presents no
argument whatsoever regarding the propriety of the Board’s denial of
3
reconsideration.3 Significantly, Claimant does not contend that the Board abused its
discretion in denying her request to reconsider its earlier decision on the merits.
Rather, Claimant argues only that the Board erred in affirming the denial of UC
benefits under Section 401(d)(1) of the Law. However, the Board’s underlying
decision on the merits of the UC claim is not before this Court because, as explained
above, Claimant did not timely appeal from that Order. See Williams v.
Unemployment Comp. Bd. of Review, 125 A.3d 875, 876 (Pa. Cmwlth. 2015) (stating
that where the claimant files an untimely petition for review from the Board’s
decision on the merits but files a timely petition for review from the Board’s order
denying reconsideration, this Court’s “review is limited to the [Board’s] denial of
reconsideration”). Therefore, we conclude that Claimant has waived any challenge
to the Board’s denial of reconsideration. See Jimoh v. Unemployment Comp. Bd. of
Review, 902 A.2d 608, 611 (Pa. Cmwlth. 2006) (recognizing that issues not included
in a petition for review or fairly comprised therein are waived); Rapid Pallet v.
Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998)
(holding that the failure to develop an issue in an appellate brief results in waiver).4
Even if Claimant had properly preserved a challenge to the Board’s denial of
reconsideration, we would find no abuse of discretion by the Board. The Board’s
regulations state that reconsideration may be granted “only for good cause in the
interest of justice without prejudice to any party.” 34 Pa. Code § 101.111(b)
(emphasis added). Moreover, “[i]n determining whether ‘good cause’ exists, the
3
Claimant’s brief contains a single reference to the reconsideration Order in her recitation
of the procedural history of the case. See Claimant’s Br. at 6. Claimant’s Petition for Review does
not mention the reconsideration Order at all. See Pet. for Review, 11/15/17, at 1-3.
4
See also Gottardy v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1493 C.D.
2014, filed February 20, 2015) (affirming the Board’s denial of reconsideration where the claimant
failed to brief the abuse of discretion issue).
4
Board must consider whether the party requesting reconsideration has presented new
evidence or changed circumstances or whether [the Board] failed to consider
relevant law.” Ensle v. Unemployment Comp. Bd. of Review, 740 A.2d 775, 779 (Pa.
Cmwlth. 1999); see Laster v. Unemployment Comp. Bd. of Review, 80 A.3d 831,
834 (Pa. Cmwlth. 2013).
Furthermore, where a reconsideration request does not allege a change of
circumstance, seek to introduce new evidence unavailable at the time of the hearing,
or articulate a legal theory that the Board did not consider in its initial decision, but
rather “merely reargue[s] its case before the [Board] . . . [there] is not ‘good cause’
for granting reconsideration.” Id.; see Bushofsky v. Unemployment Comp. Bd. of
Review, 626 A.2d 687, 690 (Pa. Cmwlth. 1993) (recognizing that reconsideration is
properly denied where the claimant seeks to introduce “the evidence already
offered”).
Here, Claimant’s request for reconsideration did not allege a change of
circumstance, seek to present new evidence that was unavailable at the time of the
hearing, or articulate any legal theory that the Board did not consider in its initial
decision. See R. Item No. 13. Rather, Claimant merely attempted to reargue the
same legal position she had initially argued to the Board in her Petition for Appeal.
See id.; see also R. Item No. 11.5 Consistent with this Court’s precedent and the
Board’s regulations, we conclude that Claimant’s Request for Reconsideration did
not establish good cause justifying the grant of reconsideration.
5
In her Request for Reconsideration, as in her Petition for Appeal, Claimant asserted that
under Genetin v. Unemployment Compensation Board of Review, 451 A.2d 1353 (Pa. 1982), her
former employer was required to provide her suitable work and failed to do so. See R. Item Nos.
11, 13.
5
Conclusion
Because Claimant has waived the only reviewable issue before this Court, we
conclude that the Board’s right to relief is clear. Accordingly, we grant the Board’s
Application for Summary Relief and affirm the Board’s November 8, 2017 Order.6
__________________________________
ELLEN CEISLER, Judge
6
We note that even if the Board had not filed an Application for Summary Relief, we still
would have affirmed the November 8, 2017 Order for the same reason as above – because Claimant
failed to argue that the Board abused its discretion in denying reconsideration.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Madeline F. Russo, :
Petitioner :
:
v. : No. 1676 C.D. 2017
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 29th day of August, 2019, we hereby GRANT the
Application for Summary Relief filed by the Unemployment Compensation Board
of Review (Board) and AFFIRM the Board’s November 8, 2017 Order.
__________________________________
ELLEN CEISLER, Judge