Y.P. Felix v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yomira Pena Felix, :
Petitioner :
:
v. : No. 1016 C.D. 2021
: Submitted: March 11, 2022
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: August 4, 2022
Yomira Pena Felix (Claimant), pro se, petitions for review of the Order of the
Unemployment Compensation Board of Review (Board) that affirmed a Referee’s
Decision dismissing Claimant’s appeal as untimely pursuant to Section 501(e) of the
Unemployment Compensation Law (Law).1 Claimant argues that her appeal was
timely filed because her father (Father) faxed the appeal on the last day to file the
appeal, and that the Board erred in rejecting Claimant’s evidence reflecting that the
fax was timely sent. Upon a review of the evidence presented by Claimant and the
Board’s credibility determinations, we are constrained to affirm.
1
Act of December 6, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e). At the time relevant to this appeal, Section 501(e) provided that “[u]nless the claimant
. . . files an appeal with the [B]oard, from the determination . . . within fifteen days . . . , and applies
for a hearing, such determination . . . shall be final . . . .” Formerly 43 P.S. § 821(e). Section
501(e) was amended by Section 3 of the Act of June 30, 2021, P.L. 173, and, as of July 24, 2021,
there are 21 days to file an appeal. 43 P.S. § 821(e).
I. BACKGROUND
Claimant worked as a full-time nursing assistant for UPMC Pinnacle
Memorial (Employer), until she was discharged on August 31, 2020, for job
abandonment. Claimant filed a claim for unemployment compensation (UC)
benefits, which a UC Service Center denied via a Notice of Determination mailed
on November 24, 2020. The UC Service Center concluded that Claimant’s actions
showed a disregard of the standards of behavior that Employer had the right to
expect, and Claimant had not established good cause for her actions. Therefore, it
held that Claimant engaged in willful misconduct and was ineligible for UC benefits
pursuant to Section 402(e) of the Law, 43 P.S. § 802(e). The Notice of
Determination stated that “[t]he final day to file a timely appeal to this determination
is December 9, 2020.” (Certified Record (C.R.) at 25.) The Notice of Determination
also indicated, among other things, that if an appeal was filed by fax, “the appeal is
filed on the date of receipt imprinted by the receiving fax machine,” and that a party
appealing by fax was “responsible for any delay, disruption, or interruption of
electronic signals and the readability of the appeal, and . . . accept[ed] the risk that
the appeal may not be properly or timely filed.” (Id. at 26.)
Claimant faxed an appeal, which the Certified Record reflects was stamped
received by the UC Service Center on December 10, 2020, at 7:37 a.m. (Id. at 31.)
A telephone hearing was held, at which both Employer and Claimant appeared
represented by counsel. Both parties submitted evidence related to the merits of the
appeal, and Claimant offered evidence regarding the timeliness of her appeal. As to
the timeliness of the appeal, Claimant testified that she filed the appeal on December
9, 2020. In support of her testimony, Claimant submitted copies of photographs of
two paper Fax Logs, but those copies were not entirely clear. (Id. at 122-23.)
2
According to Claimant, the first Fax Log established that Father faxed her appeal on
December 9, 2020, to the number on the Notice of Determination, and the second
Fax Log showed that Father faxed a second appeal on December 10, 2020, to the
same number. (Id. at 148-49.) Claimant testified that there were three pages to the
first fax, which were her “forms.” (Id. at 148.) Claimant explained that when the
first appeal was initially sent on December 9, 2020, the fax number “was busy . . .
[a]nd it didn’t go through,” and Father sent the second appeal on December 10, 2020,
to make sure all the documents went through. (Id. at 149.)
The Referee issued the Decision and made the following findings of fact.
1. The [C]laimant was employed as a full-time nursing assistant from
December 16, 2019[,] to August 31, 2020[.]
2. By determination dated November 24, 2020, the UC Service Center
found the [C]laimant ineligible for benefits pursuant to Section
402(e) of the . . . Law beginning with compensable week ending
September 5, 2020.
3. A copy of that Notice of Determination was mailed to the [C]laimant
at her last known post office address on the same date.
4. The postal authorities did not return that transmittal as
undeliverable.
5. The Notice of Determination clearly stated that the [C]laimant had
fifteen (15) days in which to file a timely appeal to that
determination and the last day to file an appeal was December 9,
2020.
6. The [C]laimant did not file an appeal on or before December 9,
2020[,] but waited until December 10, 2020[,] to file an appeal to
that Notice of Determination.
7. The [C]laimant was not misinformed nor [sic] in any way misled
regarding the right of appeal.
3
(Referee’s Decision, Findings of Fact ¶¶ 1-7.)2 The Referee noted that Section
501(e) required an appeal to be filed within 15 days, and, “absent an adequate excuse
for the late filing,” an untimely appeal had to be dismissed. (Referee’s Decision at
2.) Citing Section 101.82(b)(3) of the Board’s Regulations, 34 Pa. Code
§ 101.82(b)(3), which governs the filing of appeals by fax and identifies the risks
associated therewith, the Referee explained “[t]he fax receipt date printed by the UC
Service Center is legible” and the Fax Log for December 9, 2020, offered by
Claimant “contain[ed] no information identifying it as memorializing the
transmission of the [C]laimant’s petition for appeal.” (Id. at 3.) The Referee
concluded that, “[b]ased upon a review of the competent, credible evidence of
record, . . . the reasons given by the [C]laimant for a failure to file a timely appeal
do not establish circumstances that justify accepting an appeal filed late.” (Id.) The
Referee held that because more is required than a mere hardship to justify an
extension of time under the principle of nunc pro tunc, and Claimant did not show
any non-negligent conduct, fraud, or administrative breakdown, Claimant’s appeal
was untimely and dismissed the appeal.
Claimant appealed to the Board and filed a brief, arguing that, pursuant to
Wright v. Unemployment Compensation Board of Review, 41 A.3d 58 (Pa. Cmwlth.
2010), Claimant’s testimony and the first Fax Log established that the appeal was
filed on December 9, 2020. Upon its review of the record, the Board disagreed,
stating:
The [C]laimant failed to establish sufficient reason to treat her appeal
as timely. At the hearing, the [C]laimant testified her [F]ather faxed
over her forms on December 9. The [C]laimant’s [F]ather failed to
testify. The undeveloped fax receipt coupled with a missing important
2
The Referee’s Decision is found at pages 163-67 of the Certified Record.
4
firsthand witness is not enough to meet the heavy burden of proof here.
The Board does not credit the [C]laimant’s testimony.
(Board’s Order.)3 Accordingly, the Board concluded that the Referee’s Decision
was proper under the Law, adopted and incorporated the findings of fact and
conclusions set forth therein, and affirmed the dismissal of Claimant’s appeal.
Claimant now petitions this Court for review.4
II. PARTIES’ ARGUMENTS
On appeal, Claimant argues the Board erred in finding that she did not meet
her burden of proving that her appeal was timely because she did not provide the
firsthand testimony of Father. According to Claimant, neither her attorney at the
time nor the UC authorities advised her that such testimony was necessary, and she
attaches to her brief an affidavit from Father attesting to when he faxed the appeal.
(Claimant’s Brief (Br.), Exhibit 1.) Claimant further argues that although the Board
described her “fax log summary as undeveloped,” the Fax Logs legibly displayed
the times and dates of the faxes and the fax number, which support the finding that
3
The Board’s Order is found at page 199 of the Certified Record.
4
Although both parties presented evidence on the merits of Claimant’s appeal, only
Claimant presented evidence regarding the timeliness of that appeal. Therefore, “this Court’s
review is limited to a determination of whether the Board capriciously disregarded competent
evidence, whether there has been a constitutional violation, or whether the Board committed an
error of law.” Wright, 41 A.3d at 62 n.5. The standard for capricious disregard is as follows:
When determining whether the Board capriciously disregarded the evidence, the
Court must decide if the Board deliberately disregarded competent evidence that a
person of ordinary intelligence could not conceivably have avoided in reaching a
particular result, or stated another way, if the Board willfully or deliberately ignored
evidence that any reasonable person would have considered to be important.
Id. (quoting Jackson v. Unemployment Comp. Bd. of Rev., 933 A.2d 155, 156 n.4 (Pa. Cmwlth.
2007)).
5
her appeal was timely faxed. (Claimant’s Br. at 8-10.) Claimant further asserts that
the fact that the Board received an appeal on December 10, 2020, at 7:37 a.m., which
had to be her first appeal because it was received prior to Father’s faxing the second
appeal, reflects a problem with how the fax was received by the UC Service Center.
Claimant contends that this evidence, along with her testimony, establishes that her
appeal was timely filed and that she should not be responsible if her faxed appeal
was somehow mishandled.
The Board responds it did not err in dismissing Claimant’s appeal as untimely
because Section 101.82(b) of its Regulations specifically governs appeals filed by
fax and that provision establishes that the appeal date is the date the appeal is
received by a UC Service Center. The Board maintains there is no dispute that
Claimant’s appeal was received, as reflected by the receipt date imprinted on the
appeal, on December 10, 2020, which left it without jurisdiction. The Board asserts
that, although Claimant argues that she had Father fax the appeal on December 9,
2020, and she cannot be responsible for how her submissions were handled, these
arguments are contrary to Section 101.82(b) of its Regulations and it did not credit
Claimant’s testimony. Finally, the Board argues that Wright is factually
distinguishable and does not require a different result.
III. DISCUSSION
The version of Section 501(e) of the Law that governed Claimant’s appeal of
the UC Service Center’s Determination provided:
Unless the claimant or last employer or base-year employer of the
claimant files an appeal with the [B]oard, from the determination
contained in any notice required to be furnished by the [D]epartment
[of Labor & Industry (Department)] under section five hundred and one
(a), (c) and (d), within fifteen calendar days after such notice was
delivered to [the claimant] personally, or was mailed to [the claimant’s]
6
last known post office address, and applies for a hearing, such
determination of the [D]epartment, with respect to the particular
facts set forth in such notice, shall be final and compensation shall be
paid or denied in accordance therewith.
Formerly 43 P.S. § 821(e) (emphasis added). This statutory time frame was
similarly memorialized in the Board’s Regulations. See former 34 Pa. Code
§ 101.82(a)5 (“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 [the party] at [their] last known post
office address.”). “It is well-settled the statutory time limit for filing an appeal is
mandatory” and, if a determination becomes final due to the passing of that time
limit, “the Board loses jurisdiction to consider the matter.” Pa. Tpk. Comm’n v.
Unemployment Comp. Bd. of Rev., 991 A.2d 971, 974 (Pa. Cmwlth. 2009). The
party appealing bears the burden of proving the timeliness of the appeal. Wright, 41
A.3d at 62 n.5.
A party may appeal a determination of a UC Service Center via fax. 34 Pa.
Code § 101.82(b)(3). The Board’s Regulation addressing such appeals states:
(3) Fax transmission.
(i) The filing date will be determined as follows:
(A) The date of receipt imprinted by the Department, the
workforce investment office or the Board’s fax
machine.
(B) If the Department, the workforce investment office or
the Board’s fax machine does not imprint a legible
date, the date of transmission imprinted on the faxed
appeal by the sender’s fax machine.
5
With the amendment to Section 501(e) that extended the appeal period to 21 days as of
July 24, 2021, Section 101.82(a) of the Board’s Regulations was similarly amended.
7
(C) If the faxed appeal is received without a legible date
of transmission, the filing date will be the date
recorded by the Department appeal office, the
workforce investment office or the Board when it
receives the appeal.
(ii) A party filing an appeal by fax transmission is responsible
for delay, disruption, interruption of electronic signals and
readability of the document and accepts the risk that the
appeal may not be properly or timely filed.
(iii) A fax transmission is timely filed if it is received by the
Department appeal office, workforce investment office or
Board before midnight on the last day of the appeal period
in accordance with this subsection.
34 Pa. Code § 101.82(b)(3). The Board’s Regulation sets out how to determine the
filing date of an appeal that is faxed, and the Board must follow its own Regulations
to determine the perfection date of an appeal. Edwards v. Unemployment Comp. Bd.
of Rev., 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994); see also Francis v. Unemployment
Comp. Bd. of Rev. (Pa. Cmwlth., No. 8 C.D. 2019, filed Jan. 9, 2020), slip op. at 5.6
However, we have recognized that, in the absence of a timely appeal document in
the Board’s record, if there is evidence that an appeal was sent, the Board should
consider the evidence and determine whether the appeal was timely. Wright, 41
A.3d at 63.
The only appeal in the record is the one the UC Service Center’s fax machine
stamped received on December 10, 2020, which is untimely. (C.R. at 31-34.) At
the hearing before the Referee, Claimant provided her own testimony regarding
Father’s faxing the appeal on December 9, 2020, and she offered copies of
6
Pursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), unreported opinions, while not binding on this Court, may be used for their persuasive
value.
8
photographs of the Fax Logs. Claimant argues that this is sufficient evidence, along
with Father’s affidavit, to show that the appeal was timely filed. Upon reviewing
the record and the Board’s express evidentiary weight determinations, we are
constrained to agree with the Board that Wright is distinguishable and that Claimant
did not meet her burden of proving the timely filing of her appeal.
In Wright, the timeliness of an alleged appeal by fax transmission was also at
issue. There, the Board received the claimant’s untimely appeal of a UC Service
Center’s determination via fax on August 11, 2010. The claimant testified that he
refaxed the appeal after realizing that the Board did not receive his first fax
transmission on July 9, 2010, which would have been timely. In addition to his own
testimony, the claimant presented the testimony of his father, who faxed the appeal,
and an account log from the father’s telephone/facsimile carrier to show the fax was
successfully submitted. Also in the record was a statement by an uninterested party
at the father’s office conveying that the father faxed an appeal on July 9, 2010. This
Court concluded that the statement noted that the August 11, 2010 fax “was merely
a copy of the appeal originally faxed on July 9, 2010.” Wright, 41 A.3d at 62-63.
The Referee credited the testimony and documents and ruled that the appeal was
timely. The employer appealed to the Board regarding the merits, not whether the
appeal was timely. However, the Board determined that the claimant’s appeal was
untimely. In doing so, the Board did not acknowledge or discredit any of the
evidence the claimant presented related to the initial faxed appeal in July 2010.
Instead, the Board only made a finding that the claimant appealed via fax on August
11, 2010.
On appeal, we concluded the Board erred by not issuing any findings of fact
or conclusions of law regarding the alleged July 9, 2010 fax when it overruled the
9
Referee and deemed the appeal untimely. Id. at 67. This Court faulted the Board
for making “no finding that the earlier transmitted appeal, the appeal that is the basis
for the Referee’s decision on timeliness, was not properly or timely filed.” Id.
(emphasis added). Furthermore, this Court noted that the Board “capriciously
disregarded th[e] evidence when it focused solely on the August 11, 2010 fax
transmission in its record.” Id. Therefore, we reversed the Board’s decision and
remanded for a determination to be made on the employer’s appeal.
In contrast to the record and the Board’s disregard of the evidence in Wright,
the Board here weighed Claimant’s evidence and found it insufficient to meet her
burden of proving that the appeal was timely filed. Notably, Claimant presented less
evidence of the alleged timely appeal than the claimant in Wright. Claimant did not
present any testimony of Father, who purportedly faxed the appeal. While Claimant
asks this Court to consider Father’s affidavit, unfortunately we may not do so
because it was not presented to the Referee or the Board and, therefore, is not a part
of the certified record on appeal. Umedman v. Unemployment Comp. Bd. of Rev.,
52 A.3d 558, 564 (Pa. Cmwlth. 2012). Thus, the only evidence is Claimant’s
testimony and the Fax Logs, the latter of which provided no information as to what
was faxed to the Board. This is distinguishable from the claimant in Wright, who
produced a full copy of what allegedly had been originally faxed, along with the
testimony of the sender of the fax and a coworker who confirmed the sending of the
fax. Further, the Board did not, as it had in Wright, ignore Claimant’s evidence.
Rather, the Board weighed the evidence, did not credit Claimant’s testimony, which
included statements that Father faxed the appeal on December 9, 2020, but also,
interestingly, that the fax line “was busy” and the fax “didn’t go through,” (C.R. at
149), and found the other evidence insufficient to meet Claimant’s burden of proof
10
due to the “undeveloped” nature of the Fax Logs and the lack of firsthand knowledge
as to what was actually faxed on that date, (Board’s Order).
As the Board is the ultimate finder of fact, we are constrained by the record
and the findings made by the Board if they are supported by substantial evidence.
Peak v. Unemployment Comp. Bd. of Rev., 501 A.2d 1383, 1389 (Pa. 1985). The
Board is “required to explain its decision in sufficient detail to permit meaningful
appellate review.” Id. We recognize that, in determining whether the fact finder
capriciously disregarded evidence, we “may not reweigh the evidence or make
credibility determinations.” Wise v. Unemployment Comp. Bd. of Rev., 111 A.3d
1256, 1263 (Pa. Cmwlth. 2015). We have said “[t]he express consideration and
rejection of [] evidence, by its definition, is not a capricious disregard” of the
evidence. Reices v. Unemployment Comp. Bd. of Rev. (Pa. Cmwlth., No. 762 C.D.
2020, filed May 14, 2021), slip op. at 9 (quoting Taliaferro v. Darby Twp. Zoning
Hearing Bd., 873 A.2d 807, 816 (Pa. Cmwlth. 2004) (alteration in the original)).
Here, the Board expressly considered Claimant’s evidence, rejected that evidence as
not credible and/or insufficient to support that the appeal was timely filed, and
provided an explanation for those decisions. (Board’s Order.) These findings are
supported by the evidence and are not inconsistent with Wright.7 Therefore, we
cannot say it was error for the Board to find the appeal untimely filed.
Having concluded that Claimant’s appeal was untimely, we next consider
whether Claimant is entitled to nunc pro tunc relief. An appeal nunc pro tunc is
warranted when there was a delay in filing due to extraordinary circumstances which
involve fraud, a breakdown in the administrative process, or non-negligent conduct
7
This holding is consistent with this Court’s decision in Watson v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 907 C.D. 2019, filed April 29, 2020), in which
we affirmed the dismissal of an appeal as untimely on very similar facts.
11
by a petitioner, a petitioner’s counsel, or a third party. Cook v. Unemployment Comp.
Bd. of Rev., 671 A.2d 1130, 1131 (Pa. 1996). Claimant argues that she testified that
Father faxed the appeal documents on December 9, 2020, and that something must
have happened to the fax. However, the Board is the finder of fact and decides
credibility issues, and the Board did not credit Claimant’s testimony. Peak, 501
A.2d at 1389. We cannot overturn these findings. Furthermore, although Claimant
argues she should not be held responsible for how or when her faxed appeal
documents were received, the Board’s Regulation expressly places responsibility on
the party filing an appeal by fax. 34 Pa. Code § 101.82(b)(3)(ii). Ultimately,
Claimant chose to file the appeal by fax and, in doing so, “accept[ed] the risk that
the appeal may not be properly or timely filed.” Id. Therefore, Claimant has not
proven that she is entitled to nunc pro tunc relief.
IV. CONCLUSION
Based on the foregoing reasons, we are constrained to affirm the Board’s
Order dismissing Claimant’s appeal as untimely.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Yomira Pena Felix, :
Petitioner :
:
v. : No. 1016 C.D. 2021
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
NOW, August 4, 2022, the Order of the Unemployment Compensation Board
of Review, entered in the above-captioned matter, is AFFIRMED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge