M. J. Gullo v. UCBR (Majority Opinion)
Annotate this Case
Download PDF
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Matthew J. Gullo, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : No. 974 C.D. 2010 : Submitted: December 3, 2010 : : : HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: January 4, 2011 Matthew J. Gullo (Claimant) has filed a pro se petition for review from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying him unemployment compensation benefits because he failed to timely file an appeal within 15 days of the notice of determination that he received from the Department of Labor and Industry (Department) as required under Section 501(e) of the Unemployment Compensation Law (Law).1 Because Claimant s untimely filing was due to his own fault, we affirm the Board s decision. 1 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 provides: (Footnote continued on next page ¦) Claimant was employed by Protex Cleaning and Restoration (Employer) as a sanitation engineer with his last date of employment on July 7, 2009. He applied for unemployment benefits with the Department stating that his reason for separation was due to transportation issues. The Department determined that Claimant voluntarily terminated his employment under Section 402(b) of the Law, 43 P.S. §802(b),2 and did not provide a necessitous and compelling reason for doing so and denied benefits. The Notice of Determination (Notice) indicated that Claimant s last day to appeal the denial of benefits was September 25, 2009, and was mailed to Claimant s mailing address of 706 Dekalb Street, 1st Floor, Bridgeport, PA 194051138. (continued ¦) Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), 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. 2 Section 402(b) of the Law provides: An employe shall be ineligible for compensation for any week (b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, irrespective of whether or not such work is in employment as defined in this act. 2 Claimant filed an appeal from that decision with a Referee, but the appeal was filed after the deadline of September 25, 2009, on October 6, 2009. Along with his appeal he filed a Good Cause for Filing of Late Appeal letter indicating that he filed his appeal late because he was a patient at the Valley Forge Medical Center from September 1, 2009, through September 19, 2009, and did not receive his mail until September 24, 2009, because it was being held for him. He also did not have the opportunity to fully review the appeal with a family member until October 3, 2009. In a separate writing, he explained that he did not voluntarily terminate his employment because he had been involved in an auto accident which totaled his car, and Employer told him because he no longer had transportation, he would not be a reliable employee and terminated his employment. Claimant stated that he did not have the opportunity to attempt to take public transportation before he was terminated. A hearing was held before a Referee at which time testimony was heard on both the timeliness issue and the issue of Claimant s termination. Claimant testified that he had been hospitalized from September 1st through September 19th for drug and alcohol rehabilitation. During those dates, his address was 706 Dekalb Street in Bridgeport, although he currently was living at a new address. When he got out of the hospital on September 19th, everything was backed up, at which point I went through my mail and filed an appeal. So due to the fact that I was hospitalized at the time that the letter was sent out is why it was filed late. (January 4, 2010 Hearing Transcript at 4.) Although Claimant stated that he had learning disabilities, had an IEP and was in special classes in high school, he admitted that he could read and graduated from high school. Regarding his termination, Claimant testified that 3 he did not quit his job but was in a car accident and no longer had transportation. However, if Employer had given him the chance, he could have taken the bus and he had savings to buy a new car which he intended to do. Claimant s mother also testified that Claimant had learning disabilities as well as post-traumatic stress, general anxiety disorder and ADHD, and that she helped him with the Notice when he brought it to her. She stated that she actually typed up the appeal and faxed it to the appropriate office. Elizabeth Greco (Greco), Employer s office manager, testified that Claimant had never been terminated because he was still on the payroll when he left after his car accident which was due to DUI. Greco stated that Claimant came back to work for Employer after he was released from rehabilitation in September and that he worked for three days, with his last day of work being September 25th. Claimant then told Employer that he had another full-time job starting October 1st and left. The Referee determined that Claimant s appeal was untimely filed and did not reach the issue of whether he was terminated from his employment. In deciding that the appeal was untimely filed, he found that the Department had mailed its Notice to Claimant s then address of record 706 Dekalb Street in Bridgeport, and that it was received at that address. The last day to file a timely appeal was September 25, 2009, and Claimant did not file his appeal until October 6, 2009. Claimant did not indicate that he was misinformed or misled by any representative of the Department, and his late appeal was not caused by an act of fraud, a breakdown in the administrative process or by any non-negligent conduct of himself or a third 4 party. The Referee found that although Claimant was hospitalized in September 2009, he was discharged on September 19, 2009, and he testified that he came across the Notice on either September 20th or 21st but he wanted to consult with family members. He also continued to work for Employer on September 23, 24 and 25, 2009. Any disabilities that Claimant may have had did not prevent him from filing a timely appeal if he chose to pursue the matter in a timely fashion. Claimant filed an appeal with the Board from the Referee s decision furnishing the Board with a doctor s note signed by Heidi J. Yutzler-Overton, D.O. (Dr. Yutzler-Overton) stating the following: Matthew needed help from a family member to file his appeal for unemployment secondary to difficulty with reading comprehension. He had an IEP from 3rd to 12th grade for reading difficulties. Despite this doctor s note, the Board affirmed the Referee, and this appeal by Claimant followed.3 On appeal, Claimant argues that the Board erred in finding that his appeal was untimely because 1) he is incompetent due to having Multiple learning, emotional and physical disabilities inclusive of reading and reading comprehension and 2) the failure to make provision for mental and physical deficiency or illiteracy 3 Our scope of review of the Board s decision and order is limited to determining whether the Board committed an error of law, whether constitutional rights were violated, or whether necessary findings of fact were supported by substantial evidence. Hessour v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth 2008). 5 constitutes an administrative breakdown that warrants allowance of Claimant s appeal nunc pro tunc. 4 (Claimant s brief at 11.) Claimant further argues that the Referee is not a qualified physician and improperly found that Claimant was not so incapacitated by any disability that he could not have filed an appeal by September 25, 2009 had he chosen to do so. Claimant relies on Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829 (Pa. Cmwlth. 2003), for the proposition that the Board made no provision for his mental deficiency and illiteracy, which constituted a breakdown in the administrative system. Lewis involved a claimant who suffered from cognitive disorder, learning disorder, spelling disorder, reading disorder, mathematics disorder and a mixed anxiety depressive disorder, and who misspelled her own last name when she gave testimony. Her tests indicated that she had an IQ lower than 80 which was educable mentally retarded. She called the unemployment office several times for help and sought help from others, even taking her appeal form to her school to get help from a teacher and filled out the form to the best of her ability. Because the Board did not make sufficient findings regarding the claimant s intellectual functioning level, the lack of adequate instruction about the filing of an appeal constituted a breakdown in the administrative process that justified a nunc pro tunc appeal. 4 A nunc pro tunc appeal will be granted (1) where an appeal is not timely because of nonnegligent circumstances ¦as they relate to appellant ¦and (2) the appeal is filed within a short time after the appellant ¦learns of and has an opportunity to address the untimeliness, and (3) the time period which elapses is of very short duration, and (4) appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 384-85, 671 A.2d 1130, 1131 (1996). 6 However, in Dull v. Unemployment Compensation Board of Review, 955 A.2d 1077 (Pa. Cmwlth. 2008), this Court held that a claimant who also had filed a late appeal due to her inability to read and an IQ of 76 was not entitled to a nunc pro tunc appeal because: Claimant was prevented by her own negligence from filing a timely appeal because she neglected to have someone read her mail ¦Here the Claimant exercised no diligence at all, did not communicate with the [Service Center] regarding her difficulties, and failed to conduct her affairs in a reasonable manner by having someone open and read her mail. This is not something that Claimant was unable to do. Claimant testified she does just that now. But at the time, she did not solicit help with her mail because she was embarrassed and tried to keep her illiteracy secret. ¦We will not hold the UCBR or related agencies responsible for accommodating illiteracy where claimants fail to disclose their illiteracy and fail to make reasonable efforts to obtain appropriate assistance. Id., 955 A.2d at 1080-1081. That is not the case here. There was no evidence presented that Claimant had a mental deficiency or was illiterate or that Claimant is educable mentally retarded. To the contrary, Claimant testified that he could read and that he graduated from high school. He also went back to work for Employer for three days, yet he made no effort to contact the Department in an attempt to file his appeal. Despite Claimant s testimony that he had an IEP in high school and attended special classes, his mother s testimony that he had learning disorders that prevented him from being unable to discern what the Notice said about the deadline for filing an appeal, and Dr. Yutzler-Overton s note stating that Claimant required help in filing 7 his appeal due to his difficulty with reading comprehension, Claimant testified that he opened the Notice between the 19th and 21st of September and read the Notice. Even if Claimant had trouble with comprehension, the Board found that there was ample time that he could have taken the Notice to his mother before the 25th if he wanted to consult with her, and we find no fault with the Board s determination. As for Claimant s argument that the Referee could not find that Claimant was incapable of timely filing his appeal because the Referee was not a qualified physician, the Referee did not need to be a physician to make such a finding based on the above. Further, Dr. Yutzler-Overton never testified that Claimant could not comprehend what he read in the Notice; she only provided a note to the Board that Claimant needed help filing his appeal secondary to his difficulty with reading comprehension. Because the Board is the ultimate fact finder and determiner of credibility in unemployment cases, McCarthy v. Unemployment Compensation Board of Review, 820 A.2d 1266 (Pa. Cmwlth. 2003), and it affirmed the Referee s decision, we cannot disturb that determination on appeal. Accordingly, the order of the Board is affirmed. _______________________________ DAN PELLEGRINI, JUDGE 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Matthew J. Gullo, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : No. 974 C.D. 2010 : : : : ORDER AND NOW, this 4th day of January, 2011, the order of the Unemployment Compensation Board of Review, dated March 22, 2010, at B-497256, is affirmed. _______________________________ DAN PELLEGRINI, JUDGE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
