L. Wallace v. UCBR ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
La-Quana Wallace, :
Petitioner :
:
v. : No. 240 C.D. 2016
: Submitted: September 2, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: November 14, 2016
La-Quana Wallace (Claimant), representing herself, petitions for
review of an order of the Unemployment Compensation Board of Review (Board)
that affirmed a referee’s decision dismissing her appeal as untimely under Section
501(e) of the Unemployment Compensation Law (Law).1 Claimant currently
argues her untimely appeal should be excused because her abusive ex-boyfriend
withheld her mail. Upon review, we affirm.
I. Background
Claimant worked as a certified nursing assistant on an as-needed basis
for Select Medical Corporation (Employer) from December 16, 2014 until her last
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e).
day of work on September 9, 2015. After her separation from employment,
Claimant applied for unemployment compensation (UC) benefits. On September
25, 2015, the local service center denied Claimant benefits under Section 402(e) of
the Law, 43 P.S. §802(e) (relating to willful misconduct). On October 15, 2015,
Claimant appealed, and a referee held a hearing.
At the hearing, the threshold issue was whether Claimant filed a
timely appeal. Referee’s Op., 11/9/15, at 2.
The referee heard testimony from Claimant and two witnesses for
Employer.2 Claimant testified she received and read the notice of determination
(Determination) from the local service center, which listed the last date to appeal
as October 13, 2015. Referee’s Hr’g, 11/5/15, Notes of Testimony (N.T.) at 6.
Claimant acknowledged she mailed her appeal on October 15, 2015. N.T. at 7.
Claimant testified she did not mail her appeal until October 15, 2015 because she
did not have a stamp, her car was not working, and, as a result, she did not have a
way to get her appeal to the post office. Id.
The referee made the following relevant findings. On September 25,
2015, a Determination was issued disqualifying Claimant for UC benefits. This
Determination was mailed to Claimant’s last known post office address on
September 25, 2015. Claimant received and read the Determination. That
Determination informed Claimant there were 15 days from the date of the
Determination in which to file an appeal. The referee also found Claimant filed
2
Neither Claimant nor Employer was represented by counsel at the hearing.
2
her appeal via United States mail with a postmark date of October 15, 2015.
Claimant was not misinformed nor in any way misled regarding the right of appeal
or the need to appeal. Referee’s Op., Findings of Fact (F.F.) Nos. 1-6.
Ultimately, the referee determined Claimant did not file her appeal
within the 15-day period after proper notification. The referee determined
Claimant did not provide documentation to establish her arguments and rejected
her testimony as self-serving and not credible. The referee concluded Claimant
was ineligible under Section 501(e) of the Law, and he dismissed the appeal as
untimely.
Claimant appealed to the Board. The Board adopted the referee’s
findings and conclusions in their entirety and affirmed. From this decision,
Claimant now petitions for review.
II. Issues
On appeal,3 Claimant currently contends her appeal was untimely
because her ex-boyfriend took and withheld her mail from her. Claimant also
asserts Section 501(e) of the Law is not applicable because “43 P.S. 501(e) was
repealed on November 9, 2015.” Pet’r’s Br. at §F.
3
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. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).
3
III. Discussion
In UC cases, the Board is the ultimate fact-finder and is empowered to
resolve all conflicts in the evidence, witness credibility, and weight accorded to the
evidence. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949
A.2d 338 (Pa. Cmwlth. 2008). Unchallenged findings are conclusive on appeal.
Munski v. Unemployment Comp. Bd. of Review, 29 A.3d 133 (Pa. Cmwlth. 2011).
We are bound by the Board's findings so long as the record, taken as a whole,
contains substantial evidence to support them. Taylor v. Unemployment Comp.
Bd. of Review, 378 A.2d 829 (Pa. 1977); Ductmate.
Further, Section 501(e) of the Law provides, in relevant part:
Unless the claimant ... files an appeal with the board, from the
determination contained in any notice required to be furnished
by the department ... 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 ... denied in accordance therewith.
43 P.S. §821(e). “The requirement that an appeal be filed within 15 days is
jurisdictional, precluding either the Board or a referee from further considering the
matter.” Gannett Satellite Info. Sys., Inc. v. Unemployment Comp. Bd. of Review,
661 A.2d 502, 504 (Pa. Cmwlth. 1995) (citation omitted). The time for taking an
appeal cannot be extended as a matter of grace or mere indulgence. Russo v.
Unemployment Comp. Bd. of Review, 13 A.3d 1000 (Pa. Cmwlth. 2010).
4
The Board may consider an untimely appeal in limited circumstances.
Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth.
2008); Unemployment Comp. Bd. of Review v. Hart, 348 A.2d 497 (Pa. Cmwlth.
1975). The burden to establish the right to have an untimely appeal considered is a
heavy one because the statutory time limit established for appeals is mandatory.
Roman-Hutchinson v. Unemployment Comp. Bd. of Review, 972 A.2d 1286 (Pa.
Cmwlth. 2009).
A petitioner may satisfy this heavy burden in one of two ways.
Hessou. First, she can show administrative breakdown or fraud. Cook v.
Unemployment Comp. Bd. of Review, 671 A.2d 1130 (Pa. 1996); Hessou.
Second, she can show non-negligent conduct beyond her control caused the delay.
Cook; Hessou. “[F]ailure to file an appeal within fifteen days, without an adequate
excuse for the late filing, mandates dismissal of the appeal.” Hessou, 942 A.2d at
198 (quoting United States Postal Serv. v. Unemployment Comp. Bd. of Review,
620 A.2d 572, 573 (Pa. Cmwlth. 1993)).
Here, the Board found the service center mailed a copy of the
Determination to Claimant at her last-known post office address on the date the
Determination was issued by the service center. F.F. Nos. 1-3; N.T. at 3; Certified
Record (C.R.), Item No. 4, at 1. Claimant received and read the Determination, but
she did not file an appeal by October 13, 2015, or within 15 days of the service
center’s September 25, 2015, Determination, as required by Section 501(e). F.F.
Nos. 4-5; N.T. at 3, 6; C.R., Item No. 5 at 3. The Board also found Claimant was
5
not misinformed, nor in any way misled, regarding the right of appeal or her need
to appeal. F.F. No. 6.
At the hearing, Claimant testified her transportation and financial
problems caused her late appeal. N.T. at 7. Other than her testimony, Claimant
offered no evidence in support of her claim. The fact-finder did not credit her
testimony or attach much weight to this unsupported claim. Referee’s Op. at 2. In
fact, the Board expressly found “Claimant did not provide any documentation to
establish her arguments.” Id. (emphasis added). Such credibility determinations
are beyond our review. See Ductmate. Thus, Claimant did not establish an
adequate excuse for her late appeal.
The Board’s findings are amply supported by the record, including
Claimant’s own testimony. See N.T. at 6-7. As a result, these findings are
conclusive on appeal. Munski.
To the extent Claimant asserts her abusive ex-boyfriend took and hid
her mail from her, Claimant raises this allegation for the first time in her petition
for review. However, Claimant offered no evidence in support of this allegation at
the hearing. In fact, after Claimant testified her appeal was late based on financial
and transportation issues, when asked if Claimant had anything else to add
regarding her appeal, Claimant responded, “[n]o, not really.” N.T. at 7. Claimant
now simply alleges a new reason for her late filing in an attempt to challenge the
Board’s ultimate conclusion. Because Claimant did not raise the issue before the
referee or Board, it is waived. See Yost v. Unemployment Comp. Bd. of Review,
6
42 A.3d 1158 (Pa. Cmwlth. 2012) (issues not raised before the referee or Board are
waived).
In her brief to this Court, Claimant argues “43 P.S. 501(e) was
repealed on November 9, 2015,”4 and, therefore, is inapplicable to her. However,
Claimant did not raise this issue below or in her petition for review to this Court.
As such, it is also waived. See Morgan v. Unemployment Comp. Bd. of Review,
108 A.3d 181 (Pa. Cmwlth. 2015) (issues not raised in petition for review to this
Court, but raised in a petitioner’s brief, are waived); Yost.
In any event, Claimant’s argument fails. Claimant confuses Section
501(e) of the Law with 43 P.S. §501(e). Once the General Assembly enacts a
statute, the statute is sent to a publisher for printing. The official publisher for
Pennsylvania statutes is Purdon’s. The first page of every title of Purdon’s
Pennsylvania Statutes bears the following statement explaining discrepancies
between the statutory section numbers assigned by the General Assembly and the
Purdon’s Pennsylvania Statutes section numbers assigned by the publisher:
Pennsylvania legislation has been partially consolidated and
codified as part of the program initiated by Act 1970, Nov. 25,
P.L. 707, No. 230. Consequently, statutory sections are
designated as either Pa. C.S.A. (Purdon’s Pennsylvania
Consolidated Statutes Annotated) under numbers assigned
legislatively, or P.S. (Purdon’s Pennsylvania Statutes
Annotated) under numbers assigned by the publisher.
4
Pet’r’s Br. at §§F-G.
7
Purdon’s, Pennsylvania Statutes and Consolidated Statutes Annotated, Title 43 at 1
(2009). Because the Law has not been consolidated by the General Assembly, the
statutory section numbers assigned by the publisher controls the citation of the law.
As such, 43 P.S. §501(e) is unrelated to Section 501(e) of the Law, found at 43
P.S. §821(e).
For these reasons, we affirm the order of the Board.
ROBERT SIMPSON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
La-Quana Wallace, :
Petitioner :
:
v. : No. 240 C.D. 2016
: Submitted: September 2, 2016
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 14th day of November, 2016, the order of the
Unemployment Compensation Board of Review is AFFIRMED.
ROBERT SIMPSON, Judge