County of Northampton v. UCBR ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Northampton, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 98 C.D. 2021
Respondent : Submitted: March 4, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 10, 2022
The County of Northampton (Employer) petitions for review of the
January 8, 2021, decision and order of the Unemployment Compensation Review
Board (Board), which dismissed as untimely Employer’s appeal of the referee’s
grant of unemployment benefits to Christine Mohn (Claimant). Upon review, we
affirm.
Factual & Procedural Background
The underlying facts are not in dispute. Claimant worked in the
business office of a nursing home owned and managed by Employer. Referee’s
Decision & Order, 8/10/20, at 1; Reproduced Record (R.R.) at 74a. Near the end of
March 2020, Employer confirmed multiple positive COVID-19 test results of
residents and employees at the nursing home. R.R. at 74a. On Friday, April 3, 2020,
Employer informed Claimant and other office employees that they would be asked
to work additional hours and assist with residents due to the onset of the COVID-19
pandemic. Id. at 75a. On Monday, April 6, 2020, Claimant called in sick with
stomach pain and anxiety. Id. Later that week, she provided Employer with medical
documentation keeping her out of work until the end of April 2020, which was
accomplished via FMLA1 leave. Id. As May 1, 2020, neared, Claimant asked
Employer if she could work from home due to ongoing concerns about her health
and well-being. Id. at 75a. Employer declined to accommodate Claimant’s request
and she resigned as of May 1, 2020. Id.
Claimant applied for benefits, which Employer contested. R.R. at 74a.
After a telephonic hearing, during which both sides were counseled, the referee
found Claimant eligible for benefits and issued a decision dated August 10, 2020.
Id. at 74a-77a. The decision advised that the last date to file an appeal to the Board
was 15 days later, on August 25, 2020. Id. at 74a & 76a. Employer did not file its
appeal until September 1, 2020, at which time Employer acknowledged the appeal’s
lateness and sought nunc pro tunc relief. Id. at 117a-23a.
A Board-ordered telephonic hearing was held on November 16, 2020.
R.R. at 199a-212a. Attorney Philip Lauer (Lauer), who at the time was the
Northampton County solicitor, represented the County as employer and testified as
a witness to the factual circumstances of Employer’s untimely appeal. Id. at 201a.
Lauer confirmed that the referee’s August 10, 2020, decision and order was sent to
Employer and to himself as solicitor at the Northampton County Courthouse, which
is the correct address. Id. at 205a. The solicitor’s office received and date-stamped
1
The Family and Medical Leave Act, 29 U.S.C. §§ 2601, 2611-2620, 2631-2636, 2651-
2654.
2
its copy on August 19, 2020. Id. at 206a. At that time, Lauer was in Maine on a
scheduled vacation. Id. Lauer stated that there is a process in the solicitor’s office
where staff can reach him with time-sensitive or important matters by email or text
message when he is away from the office, but that did not happen here; he admitted
he had no explanation why he was not contacted and that he had been “upset” about
it. Id. at 208a-09a. He returned from his vacation on August 27, 2020, which was a
Thursday, but was not back in the solicitor’s office until either the next day, August
28, 2020, or the following Monday, August 31, 2020. Id. He prepared the appeal
and it was filed by email on September 1, 2020, by clerical staff in the solicitor’s
office. Id. at 207a-09a.
After the hearing, the Board dismissed Employer’s appeal upon finding
that its untimeliness was not caused by fraud, a breakdown of the agency’s
administrative system, or by a non-negligent cause. Board’s Decision, 1/8/21;
Certified Record (C.R.) #24. Employer now appeals to this Court.2
Discussion
Sections 501(e) and 502 of Pennsylvania’s Unemployment
Compensation Law3 in effect at the relevant time provided that a party had 15 days
to appeal a referee’s decision to the Board. 43 P.S. §§ 821(e), 822;4 see also 34 Pa.
Code § 101.82; Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197 (Pa.
2
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication is in accordance with the law, and whether necessary findings of fact are supported
by substantial evidence. 2 Pa.C.S. § 704.
3
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751-
918.10.
4
Pursuant to Section 5(3) of Act No. 2021-30, as of its effective date of July 24, 2021, the
appeal period has been extended to 21 days. See 43 P.S. §§ 821(e), 822.
3
Cmwlth. 2008). An appeal filed even one day after the 15-day appeal period is
untimely. Hessou, 942 A.2d at 198. If an appeal is not timely, the referee’s decision
becomes final, the Board does not have jurisdiction to consider the matter, and
dismissal is warranted. Id. at 197-98. As the time limit for a statutory appeal is
mandatory; it may not be extended as a matter of grace or indulgence. Russo v.
Unemployment Comp. Bd. of Rev., 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010).
The Board may, however, consider an untimely appeal in limited
circumstances. Hessou, 942 A.2d at 198. In light of the mandatory nature of the
statutory time limit for appeals, however, the burden on the appellant is heavy. Id.
“First, [the appellant] can show the administrative authority engaged in fraudulent
behavior or manifestly wrongful or negligent conduct. Second, [the appellant] can
show non-negligent conduct beyond his control caused the delay.” Id. (citation
omitted). If an appellant establishes that non-negligent circumstances caused the
delay in filing an appeal, nunc pro tunc relief may be granted as long as the appeal
was filed shortly after the lateness was discovered, the time period from the deadline
to the appeal was of short duration, and the other side was not prejudiced. Cook v.
Unemployment Comp. Bd. of Rev., 671 A.2d 1130, 1131 (Pa. Cmwlth. 2008).
Justifiable non-negligent conduct in this context may be that of either
the appellant or a third party, including the appellant’s counsel. Cook, 671 A.2d at
1131 (citing Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)).5 In Bass, the
appellant’s counsel prepared appeal documentation within the appeal period and left
it with his secretary for in-person filing on a Friday. 401 A.2d at 1134. The secretary
5
Bass concerned an appeal to the Supreme Court of Pennsylvania from this Court’s
decision in a tort claim against the Bureau of Corrections, but it has been cited numerous times in
administrative matters. See, e.g., Cook; Lajevic v. Dep’t of Transp., Bureau of Driver Licensing,
718 A.2d 371, 373 (Pa. Cmwlth. 1998); Nat’l Rolling Mills v. Workmen’s Comp. Appeal Bd.
(Jennings), 575 A.2d 953 (Pa. Cmwlth. 1990).
4
fell ill that day and was unable to return to work until ten days later, during which
time the appeal deadline elapsed. Id. Upon her return, the appeal was filed four
days late. Our Supreme Court found the circumstances amounted to non-negligent
conduct on the attorney’s part and granted relief. Id. at 1135.
In Perry v. Unemployment Compensation Board of Review, 459 A.2d
1342 (Pa. Cmwlth. 1983), the claimant’s counsel’s law clerk was driving the
claimant’s appeal to the post office on the last day for timely filing (a Friday) when
his car broke down. He was unable to reach the post office before it closed and the
appeal was filed the following Monday, three days late. Id. at 1343. Relying on
Bass, this Court granted relief, finding the circumstances amounted to non-negligent
conduct on the part of the claimant’s counsel’s office. Id. Perry also cited Tony
Grande, Inc. v. Workmen’s Compensation Appeal Board (Rodriguez), 455 A.2d 299(Pa. Cmwlth. 1983), where the employer’s counsel was hospitalized for cardiac
conditions and surgery, which caused the employer’s untimely appeal. Id. at 299 &
n.2. This Court granted relief upon finding the circumstances amounted to non-
negligent conduct on counsel’s part. Id. at 300.
By contrast, when an appellant’s counsel’s failure to file a timely appeal
with the administrative tribunal is due to inadvertence and lacks any indicia of non-
negligent or exigent circumstances, this Court has declined to grant nunc pro tunc
relief. See DiJohn v. Unemployment Comp. Bd. of Rev., 687 A.2d 1213, 1215-16
(Pa. Cmwlth. 1997) (claimant’s counsel appealed to the Commonwealth Court rather
than the Board); Washington v. Workmen’s Comp. Appeal Bd. (Harrisburg Hosp.),
450 A.2d 803, 805 (Pa. Cmwlth. 1982) (claimant’s counsel sent letter to appeal
board indicating intent to appeal but never formally filed appeal). In Wertman v.
Workmen’s Compensation Appeal Board (American Nickeloid Co.), 426 A.2d 2055
(Pa. Cmwlth. 1981), the claimant’s counsel dictated the claimant’s appeal and
instructed his staff to file it by the deadline. Id. at 206. Counsel’s secretary failed
to type or file the appeal and it was filed several weeks late after counsel discovered
the error. Id. This Court declined to extend the exception for administrative
breakdown, which pertains to the agency in question, to an oversight occurring in
the office of the appellant’s lawyer. Id.Here, Employer argues that the lateness of its appeal was due to non-
negligent circumstances. Employer avers that the COVID-19 pandemic resulted in
mail delays and Employer did not receive the referee’s decision until August 19,
2020, nine days after it was mailed on August 10, 2020; this left Employer with only
six days to evaluate and appeal the decision before the August 25, 2020, deadline
elapsed. Employer’s Br. at 6-7. However, Lauer did not see the decision
immediately because he was on vacation and his office failed to advise him that the
decision had arrived. Id. at 8. Citing Cook, Employer asserts that it acted shortly
after Lauer discovered the decision when he returned to the office on August 28th
or 31st after his vacation, and that the late filing of Employer’s appeal on September
1, 2020, did not cause Claimant to sustain any prejudice because during the relevant
time, she was eligible for benefits based on the referee’s decision. Id. at 7-8.
Claimant responds that Employer’s reference to mail delays associated
with the COVID-19 pandemic is disingenuous because Employer admits it received
the referee’s decision well within the appeal period. Claimant’s Br. at 5. Claimant
notes that the decision was mailed to both Employer and to Lauer at the solicitor’s
office in the same building, therefore Employer had two opportunities within its
offices to ensure a timely appeal. Id. at 8. Claimant maintains that the failure of
both of Employer’s offices to alert Lauer of the need to appeal while he was still on
6
vacation, and Lauer’s consequent failure to learn of the need for an appeal until his
return to his office 1-3 days after his vacation ended, cannot be characterized as non-
negligent conduct on Employer’s part. Id. at 8-9.
We agree with Claimant. Employer’s assertion that pandemic-related
mail delays are at least part of the cause of its untimely appeal fails because
Employer acknowledged that it did receive the referee’s decision six days before the
appeal period lapsed. R.R. at 206a. Even before the pandemic, this Court has held
that while a delay in mail delivery may be the basis for nunc pro tunc relief, the
appellant must still show that the delay negated his ability to file a timely appeal.
Walker v. Unemployment Comp. Bd. of Rev., 461 A.2d 346, 347 (Pa. Cmwlth. 1981).
Here, while there may have been a pandemic-related delay in delivery of the
referee’s decision, by Employer’s own admission it still had nearly a week after
receipt to appeal, and with today’s access to rapid communications technology and
online filing, doing so is far easier than in the prior decades out of which the above
cases arose.6
Beyond Employer’s unavailing allegation that delayed receipt of the
referee’s decision contributed to the untimely appeal, Employer has failed to show
that non-negligent circumstances caused the lateness. Lauer acknowledged that due
to a breakdown in office procedure, he did not learn of the referee’s decision until
after he returned to the office from vacation on August 28th or 31st, by which time
the appeal was already late. His candidness is commendable, and he did act swiftly
upon learning of the problem. However, the facts here do not resemble those in
Bass, Perry, and Tony Grande, Inc., where filing options were much more limited
6
Moreover, Employer’s appeal, which asserts that the referee’s grant of benefits to
Claimant was not supported by the evidence, is not particularly complex. See R.R. at 80a-82a.
7
and the circumstances of counsel or legal staff sustaining an unexpected illness or
car trouble constituted truly non-negligent reasons why those appeals were untimely.
Here, the facts as admitted by Employer are analogous to those in
DiJohn, Washington, and Wertman, where untimeliness was due to inadvertence or
an avoidable breakdown in counsel’s office procedures. Granting relief under these
circumstances would amount to the kind of grace or indulgence that this Court has
found unavailable in the context of a mandatory and jurisdictional deadline. Russo,
13 A.3d at 1003; Hessou, 942 A.2d at 197-98. Employer therefore has not shown it
is eligible for nunc pro tunc relief and the Board did not err in dismissing Employer’s
untimely appeal from the referee’s decision.
Conclusion
Based on the foregoing discussion, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
County of Northampton, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 98 C.D. 2021
Respondent :
ORDER
AND NOW, this 10th day of May, 2022, the January 8, 2021, Order of
the Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge