T. Liang v. UCBR ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tianjiu Liang, :
Petitioner :
: No. 753 C.D. 2019
v. :
: Submitted: October 25, 2019
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 18, 2020
Tianjiu Liang (Claimant) petitions, pro se, for review of the May 24, 2019
order of the Unemployment Compensation (UC) Board of Review (Board) which
affirmed the referee’s dismissal of his appeal as untimely under section 501(e) of the
Unemployment Compensation Law (Law).1 Upon review, we affirm.
Claimant was employed by the Five Star Chinese Restaurant Corporation
(Employer), full time, until October 18, 2018. (Certified Record (C.R.) at Item No. 6.)
Claimant applied for benefits the same day he was terminated, alleging a lack of work
as the reason for his termination. (C.R. at Item Nos. 2, 3.) The notice of determination
1
Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897,
as amended, 43 P.S. §821(e). Section 501(e) of the Law requires a claimant to appeal an
unemployment compensation notice of determination within 15 days of being mailed to him. Id.
mailed on March 1, 2019, stated that Claimant voluntarily quit his job because of
unknown reasons, and there was insufficient information provided to determine
whether he had a necessitous and compelling reason for voluntarily leaving his job.
(C.R. at Item No. 6, Finding of Fact (F.F.) No. 1.) Therefore, Claimant was found to
be ineligible for benefits under Section 402(b) of the Law, 43 P.S. § 802(b).2 (F.F. No.
1.) The notice of determination clearly stated that “[t]he last day to appeal this
determination is: March 18, 2019.” (C.R. at Item No. 6, F.F. No. 4) (emphasis in
original). Moreover, the determination explained that under “Section 501(e) of the
[Law], this determination becomes final unless an appeal is timely filed.” (C.R. at Item
No. 6.) The determination was mailed to Claimant’s address on file and was not
returned as undeliverable. (F.F. No. 3.) Claimant filed his appeal on March 20, 2019,
two days after the required deadline. (C.R. at Item No. 7, F.F. No. 5.)
A hearing was set for April 16, 2019, to determine whether Claimant filed
a timely appeal from the initial determination under section 501(e) of the Law. (C.R.
at Item No. 9.) The hearing notice explained that if an interpreter was needed for a
language other than English, to contact the referee’s office and an interpreter would be
provided. Id. Claimant was assigned a Cantonese interpreter to assist him at the
hearing. Id. Claimant testified at the hearing. (C.R. at Item No. 10.)
At the hearing, Claimant explained that he cannot understand English, but
that his two nephews understand English and are able to help him. Id. He explained
that if he got mail in English he would need his nephew to help him translate it. Id.
When asked why he did not file his appeal on or before March 18, 2019, Claimant
explained that he (1) did not understand English, and (2) had a problem getting into his
2
It was also established that Claimant was liable for a fault overpayment under Section 804(a)
of the Law, 43 P.S. §847(a), in the amount of $1,827.00. (F.F. No. 2.)
2
mailbox because he misplaced his key. Id; (F.F. No. 6.) After finding his key, he took
the notice of determination to someone who understood English to help him translate
its contents. (C.R. at Item No. 10, F.F. No. 7.) Claimant also testified that he was not
terminated because of a disagreement between him, Employer, and other co-workers,
but that he was let go because business was bad. Id.
The referee’s decision/order was mailed on April 18, 2019. (C.R. at Item
No. 11.) The referee made the following findings:
1. On [March 1, 2019], the Erie UC Service Center issued a
Notice of Determination denying [Claimant] benefits under
Section 402(b)[][, of the Law].
2. The Service Center also issued a Notice of Overpayment
Determination under Section 804(a).
3. Both Determinations were mailed to [Claimant’s] address on
file at that time and were not returned by the Post Office as
undeliverable.
4. Both Determinations informed [Claimant] that, if he
disagreed with the Determinations he had the right to file an
appeal, and the last day to file a timely appeal was [March
18, 2019].
5. [Claimant] filed an appeal on [March 20, 2019] via fax.
6. [Claimant] did not file an appeal prior to [March 20, 2019]
because he did not understand English and had to wait until
he could find someone to translate the document for him, and
he also had problems getting the mail from his mailbox
because he could not find the key.
7. Once [Claimant] found someone to interpret the
Determinations he immediately filed the appeal.
3
(F.F. Nos. 1-7.) The referee concluded that Claimant was denied benefits under Section
402(b) of the Law and was determined to have a fault overpayment under Section
804(a) of the Law. (C.R. at Item No. 11.) The referee explained that both
determinations were mailed to Claimant’s address and notified Claimant that if he
wanted to appeal, the last day to file was March 18, 2019. Id. However, the referee
concluded that Claimant did not appeal the decision until March 20, 2019, because he
did not understand English and could not find his mailbox key. Id. The referee
reasoned that under Section 501(e) of the Law, Claimant had 15 days to appeal the
decisions and that it is well-settled that the 15-day time limit is mandatory and is subject
to strict application. Id. The referee explained that Claimant would have had to show
fraud, a breakdown in the administrative process, or non-negligent conduct on behalf
of the party or his/her representative to be entitled to relief. Id. Because Claimant did
not show any of these, the referee concluded that the appeal was untimely. Id.
Claimant appealed the referee’s decision to the Board on April 24, 2019.
By decision mailed May 24, 2019, the Board affirmed the referee’s
decision. (C.R. at Item No. 13.) The Board noted that Claimant testified that he
misplaced the key to his mailbox, which caused him a delay in retrieving his mail. Id.
However, this was not sufficient to establish that the late filing was due to good cause
or non-negligent conduct. Id. Additionally, the Board addressed Claimant’s allegation
that the late appeal was the fault of his employer for making an error on “an
employment letter.” Id. However, the Board determined that this was not raised before
the referee and, thus, it did not consider the allegation. Id. Claimant subsequently
appealed to this Court.
4
Discussion
On appeal,3 Claimant raises one issue, whether the Board erred in
dismissing his appeal as untimely under section 501(e) of the Law, considering the fact
that he (1) was unable to receive his mail, (2) had a language barrier, and (3) was a
single father trying to manage too many things.4
This Court routinely encounters the situation where a claimant fails to
timely appeal to the Board. Section 501(e) of the Law provides as follows:
Unless the claimant . . . files an appeal with the [B]oard, from
the determination contained in any notice . . . 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 paid or
denied in accordance therewith.
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication is in accordance with the law, and whether findings of fact are supported by
substantial evidence. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1162
n.2 (Pa. Cmwlth. 2013). “[S]ubstantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Chartiers Community Mental Health and Retardation
Center v. Unemployment Compensation Board of Review, 134 A.3d 1165, 1170 (Pa. Cmwlth. 2016).
4
Although we are sensitive and sympathetic to Claimant’s situation, Claimant’s allegations
that he was a single father, taking care of two children, trying to find a job, and juggling too many
things are not in the record. “[M]ere allegations are no substitute for record evidence, [and] this Court
cannot consider the averments of fact in Claimant’s brief when determining whether the Board erred
in issuing its findings.” Hollingsworth v. Unemployment Compensation Board of Review, 189 A.3d
1109, 1113 (Pa. Cmwlth. 2019) (citing Pryor v. Workers’ Compensation Appeal Board (Colin Service
Systems), 923 A.2d 1197, 1205 (Pa. Cmwlth. 2007); Andracki v. Workers’ Compensation Appeal
Board (Allied Eastern States Maintenance), 508 A.2d 624, 625 n.2 (Pa. Cmwlth. 1986)). Thus, we
will not consider these specific allegations. Nevertheless, “[t]he pressure of life events are insufficient
to excuse an untimely appeal. This court consistently rejects such excuses.” Carney v.
Unemployment Compensation Board of Review, 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018).
5
43 P.S. §821(e). Pennsylvania courts have consistently held that the 15-day appeal
period under section 501(e) is mandatory and subject to strict application. Constantini
v. Unemployment Compensation Board of Review, 173 A.3d 838, 844 (Pa. Cmwlth.
2017); Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1292
(Pa. Cmwlth. 1996); Darroch v. Unemployment Compensation Board of Review, 627
A.2d 1235, 1237 (Pa. Cmwlth. 1993). If an appeal from a local service center
determination is not filed within 15 days of mailing, the determination becomes final
and the Board does not have the requisite jurisdiction to consider the matter. Vereb,
676 A.2d at 1292; Darroch, 627 A.2d 1237. “Appeal periods, even at the
administrative level, are jurisdictional and may not be extended as a matter of grace or
indulgence,” and even an “appeal filed one day after the expiration of the statutory
appeal period must be dismissed as untimely.” Dumberth v. Unemployment
Compensation Board of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003).
Nevertheless, an untimely appeal, i.e., an appeal nunc pro tunc, may be
allowed in limited circumstances. Hessou v. Unemployment Compensation Board of
Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). The burden to establish the right to a
nunc pro tunc appeal is a “heavy one because the statutory time limit established for
appeals is mandatory.” Id. A petitioner may only satisfy this heavy burden by
demonstrating either (1) “the administrative authority engaged in fraudulent behavior
or manifestly wrongful or negligent conduct;”5 or (2) “non-negligent conduct beyond
his control caused the delay.” Id. Thus, “[f]ailure to file an appeal within [15] days,
without an adequate excuse for the late filing, mandates dismissal of the appeal.” Id.
5
A so-called “administrative breakdown” occurs where the “administrative board or body is
negligent, acts improperly, or unintentionally misleads a party.” Duhigg v. Unemployment
Compensation Board of Review, 181 A.3d 1, 4 (Pa. Cmwlth. 2017).
6
Here, the delay was not caused by fraudulent, wrongful, or negligent
administrative conduct. Claimant misplacing his mailbox key reflects the kind of
personal negligence upon which nunc pro tunc relief should not be granted. This Court
has consistently held that claimants are responsible for receiving their mail. In Duhigg,
we observed that an unemployment compensation claimant bears the responsibility of
notifying the Department of a change in address when it occurs. 181 A.3d at 5. See
also Richards v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 327
C.D. 2019, filed October 18, 2019) (unreported)6 (concluding that a claimant who did
not provide the Department with his new address, file a change of address form with
the United States Postal Service, or check for mail at his previous residence was not
entitled to nunc pro tunc relief). Furthermore, in Johnson v. Unemployment
Compensation Board of Review (Pa. Cmwlth., No. 1220 C.D. 2017, filed February 23,
2018) (unreported),7 we concluded that a claimant who did not receive a determination
because she was not living at home nor collecting her mail did not have good cause for
filing a late appeal because “it was [the claimant’s] responsibility to collect her mail in
a timely manner.” Id.; slip op. at 6-7.
In Schoettle v. Unemployment Compensation Board of Review (Pa.
Cmwlth., No. 661 C.D. 2018, filed November 29, 2018) (unreported),8 the claimant
did not receive notice of the hearing because she left the state, stopped delivery of her
mail, and did not continue its delivery until after the hearing. Id., slip op. at 5. We
stated that, “[i]n other words, [c]laimant admits that she was unaware of the date and
6
Richards is an unreported opinion. Under section 414(a) of this Court’s Internal Operating
Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).
7
See supra note 6.
8
See supra note 6.
7
time of the rescheduled hearing, because, through her own actions, she was not able to
receive her mail.” Id., slip op. at 10. This Court concluded that the Board was correct
in deciding that these reasons were neither good nor proper causes and noted that the
claimant could have asked someone to forward or check her mail or called the Board
to inquire as to the date of the hearing. Id. We held that the claimant’s actions of
stopping her mail combined with not ensuring she could receive the notice in some
other way was a negligent act. Id. Although Schoettle concerned a claimant attempting
to establish good cause sufficient to warrant a re-opening of a hearing, the logic of that
decision is nevertheless compelling. Because Claimant, here, did not take proper
measures to receive his mail on time, he is not entitled to nunc pro tunc relief on those
grounds. Just as all of the claimants in the aforementioned cases were required to take
measures to receive their mail on time, so was Claimant.
Claimant also asserts that once he found his keys, he retrieved the mail
and took it to be translated because he does not understand English.9 However,
Claimant misplacing the key to his mailbox is negligence that does not justify a late
appeal. As stated above, to meet the requirements for nunc pro tunc relief, a claimant
must show that the administrative authority engaged in fraudulent, wrongful, or
negligent conduct; or the delay was due to non-negligent conduct beyond his control.
9
In Ifkirne v. Unemployment Compensation Board of Review (Pa. Cmwlth., Nos. 1411 & 1412
C.D. 2010, filed January 11, 2011) (unreported) the claimant was a native of Morocco and English
was not his native language. Id., slip op. at 7. He asserted that he did not understand correspondence
from the local service center and was unaware he had to file an appeal. Id. The claimant called the
local service center and a translator informed him he had to appeal. Id. We held that although the
claimant did not understand English, it was claimant’s delay in filing the appeal after being advised
a number of times to appeal that supported the denial of nunc pro tunc relief. Similarly, it is not
Claimant’s language barrier that caused the delay, but his inability to retrieve his mail on time. Ifkirne
is an unreported opinion. Under section 414(a) of this Court’s Internal Operating Procedures, an
unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).
8
Claimant misplacing his mailbox key and being unable to retrieve his mail does not
require relief nunc pro tunc. There has been no allegation that the administrative
authority engaged in fraudulent, wrongful, or negligent conduct, nor has Claimant
alleged that the delay was due to non-negligent conduct beyond his control.
Accordingly, although we are sympathetic to Claimant’s situation, we are
constrained to conclude that the Board did not err in affirming and adopting the
referee’s decision.
________________________________
PATRICIA A. McCULLOUGH, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tianjiu Liang, :
Petitioner :
: No. 753 C.D. 2019
v. :
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 18th day of February, 2020, the order of the
Unemployment Compensation Board of Review mailed on May 24, 2019 is
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge