A. Amin v. UCBR ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdalla Amin, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 774 C.D. 2022
Respondent : Submitted: March 24, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 9, 2023
Petitioner, Abdalla Amin (Claimant), pro se, seeks review of an order
of the Unemployment Compensation (UC) Board of Review (Board) dated June 28,
2022. The Board affirmed a referee’s decision dismissing Claimant’s appeal of two
initial determinations by the Pennsylvania Department of Labor and Industry, Office
of UC Benefits (Department) that found Claimant received non-fault overpayments
of UC benefits. The referee concluded, and the Board affirmed, that Claimant’s
appeal from the Department’s initial determinations was untimely under Section
501(e) of the UC Law,1 43 P.S. § 821(e). Upon review, we affirm the Board’s order.
1
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
On September 28, 2020, the Department mailed Claimant a notice of
an initial determination of a non-fault overpayment. Certified Record (C.R.) at 25.
The notice provided appeal instructions and stated Claimant had to appeal within 15
days, or by October 14, 2020. Id. at 39, 42.2 On June 11, 2021, the Department sent
Claimant a notice of another initial determination of a non-fault overpayment. Id. at
36, 71. Thirty-six days later, on July 27, 2021, Claimant appealed both initial
determinations. Id. at 32, 35, 38, 43, 46, 80. In his appeal document, Claimant did
not address the timeliness of his appeal; he merely alleged that he was not working
during the periods for which he received UC benefits. Id. at 44.
The Department issued a notice of a referee hearing concerning
Claimant’s appeal. C.R. at 56. The notice listed the issues to be addressed at the
hearing, specifically including whether Claimant filed a timely appeal from the
initial determinations. Id. The referee held a telephone hearing on February 9, 2022.
Id. at 72. At the hearing, Claimant acknowledged that he received the notices of
determination. Id. at 76, 83. He stated he did not remember when he sent his appeal,
but that he resent it on July 27, 2021. Id. at 74. However, the record contains no
evidence of any earlier appeal. Id. at 80.
On February 9, 2022, following the telephone hearing, the referee
issued a decision dismissing Claimant’s appeal as untimely. C.R. at 82-85.
Claimant timely appealed to the Board from the referee’s dismissal. Id. at 92-96.
On June 28, 2022, the Board issued an order affirming the referee’s dismissal of
Claimant’s appeal of the initial determinations. Id. at 105-07. Before the Board,
Claimant argued that the referee did not allow him to offer evidence; however, the
hearing transcript shows that the referee asked Claimant twice whether he had
2
The appeal deadline was expanded from 15 to 21 days as of July 24, 2021.
2
anything else he wanted to offer, including evidence regarding timeliness, and he
said he did not. Id. at 77, 80, 105-06. The Board found no evidence of fraud or
administrative breakdown that would excuse Claimant’s untimely appeal. Id. at 106.
Section 501(e) of the UC Law provides that a party has 21 (formerly
15) days to appeal a referee’s decision to the Board. 43 P.S. § 821(e). The
Department’s associated regulation calculates the deadline for the appeal of a UC
determination from the date the decision was delivered personally or placed into the
mail. 34 Pa. Code § 101.82. If an appeal is not timely filed, the determination
becomes final, and the Board does not have the requisite jurisdiction to consider the
matter. Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197-98 (Pa.
Cmwlth. 2008) (citing Darroch v. Unemployment Comp. Bd. of Rev., 627 A.2d 1235(Pa. Cmwlth. 1993)). An appeal filed even one day after the appeal period is
untimely. Hessou, 942 A.2d at 198 (citing Dumberth v. Unemployment Comp. Bd.
of Rev., 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc)).
The Board may consider an untimely appeal only in limited
circumstances. Hessou, 942 A.2d at 198 (citing Unemployment Comp. Bd. of Rev.
v. Hart, 348 A.2d 497 (Pa. Cmwlth. 1975)). A claimant seeking to establish the right
to an untimely appeal bears a heavy burden, because the statutory time limit for
appeals is mandatory. Hessou, 942 A.2d at 198 (citing Blast Intermediate Unit
No.17 v. Unemployment Comp. Bd. of Rev., 645 A.2d 447 (Pa. Cmwlth. 1994)). To
satisfy his burden, a claimant must show fraudulent behavior or manifestly wrongful
or negligent conduct by the administrative authority or non-negligent conduct
beyond the claimant’s control that caused the delay. Hessou, 942 A.2d at 198 (citing
Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)). “[F]ailure to file an appeal
within fifteen days, without an adequate excuse for the late filing, mandates
3
dismissal of the appeal.” Hessou, 942 A.2d at 198 (quoting U.S. Postal Serv. v.
Unemployment Comp. Bd. of Rev., 620 A.2d 572, 573 (Pa. Cmwlth. 1993))
(additional quotation marks omitted).
Here, the record is bare of any evidence of a timely appeal from the
Department’s initial determinations. The record is likewise bare of evidence that
Claimant had an adequate excuse for the late filing. As noted above, although
Claimant apparently argued to the Board that the referee somehow kept him from
submitting evidence regarding the timeliness of his appeal, the hearing transcript
clearly reflects that the referee asked Claimant twice whether he wished to offer any
additional evidence concerning the timeliness issue, and that Claimant responded in
the negative both times. C.R. at 77, 80, 105-06. We agree with the Board that the
record contains no evidence of fraud or administrative breakdown that would excuse
Claimant’s untimely appeal. See id. at 106. We further observe that there is no
record evidence of non-negligent conduct beyond Claimant’s control that caused the
delay. Accordingly, we are constrained to affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdalla Amin, :
Petitioner :
:
v. :
:
Unemployment Compensation :
Board of Review, : No. 774 C.D. 2022
Respondent :
ORDER
AND NOW, this 9th day of May, 2023, the June 28, 2022 order of the
Unemployment Compensation Board of Review is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge