A. G. Eberle v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Albert G. Eberle, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : : : No. 1438 C.D. 2007 Submitted: January 4, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: February 11, 2008 Albert G. Eberle (Claimant), petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed a Referee s decision to dismiss Claimant s appeal as untimely under Section 501(e) of the Unemployment Compensation Law (Law).1 On appeal, Claimant asserts that the Board erred because: (1) his appeal was timely filed, based on assurances from an 1 821(e). Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § employee of the Unemployment Compensation Service Center (Service Center); (2) he made a good faith effort in filing his appeal, and if the appeal is deemed late it is a de minimis infraction; (3) he was wrongfully terminated; and (4) he is entitled to unemployment compensation benefits. The Service Center denied benefits to Claimant and assessed a fault overpayment pursuant to Section 804(a) of the Law, 43 P.S. §874(a). (Service Center Decision, Item 8.) Claimant appealed. A hearing was held at which Claimant, with counsel, and a representative of Abington Township (Employer), were present. After a hearing on timeliness of the appeal only, the Referee made the following findings of fact: 1. On March 9, 2007, the Service Center issued two written determinations. One determination denied benefits to Claimant, based upon his separation from employment from Abington Township, and the other determination found that Claimant had received $1,584.00 in unemployment compensation, to which he was not entitled through his own fault, as determined under Section 804(a) of the Law. 2. Copies of the above-mentioned determinations were mailed to Claimant s address of record with the Service Center, and the determinations were not returned by the Postal Authorities as being undeliverable to Claimant s address of record. Claimant did receive a copy of the Notice of Determination which denied benefits to him, based upon the separation from employment, and Claimant had that in his possession for approximately two weeks prior to Claimant filing his appeal. 3. The last day to file a timely appeal to the determinations was March 26, 2007. 4. Claimant did not file his appeal until March 29, 2007 when it was filed by fax. 5. Claimant was not misled or misinformed by any unemployment compensation representative concerning Claimant s right to file an appeal. 2 6. Claimant s late appeal was not caused by an act of fraud, or by a breakdown in the administrative process, or by any non-negligent conduct of Claimant, or a third-party. (Referee s Decision, Findings of Fact (FOF) ¶¶1-6, Item 13.) The Referee determined that the appeal was untimely as Claimant had ample time to file his appeal and did not fall within any of the limited exceptions. (Referee s Decision, Reasoning, Item 13.) Claimant then appealed to the Board, which adopted the Referee s Findings of Fact and found the Referee s determinations proper. (Board s Order, Item 17.) The Board further noted that the untimely appeal was a result of Claimant s own negligence, since he failed to read the Notice of Determination completely. (Board s Order, Item 17.) This appeal ensued.2 Claimant first argues that his appeal was timely because an employee of the Service Center assured him that if he filed the appeal on that day, March 29, 2007, that it would not be too late to file. (Claimant s Br. at 12; see also Referee s Hr g Tr. at 7-8.) However, such a statement by a Service Center employee, even if true, would not excuse Claimant s tardiness. Section 501(e) of the Law provides: Unless the claimant . . . files an appeal with the board, from the determination contained in any notice required to be furnished by the department . . . within fifteen calendar days after such notice was 2 When reviewing an order from the Board, this Court s review is limited to a determination of whether the Board committed an error of law, whether constitutional rights were violated, or whether necessary factual findings are supported by substantial evidence. Nolan v. Unemployment Compensation Board of Review, 797 A.2d 1042, 1045 n.4 (Pa. Cmwlth. 2002). Substantial evidence is that which a reasonable mind, without weighing the evidence or substituting its judgment for that of the fact finder, might accept as adequate to support the conclusion reached. See Brown v. Unemployment Compensation Board of Review, 854 A.2d 626, 628 (Pa. Cmwlth. 2004). 3 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. 43 P.S. § 821(e) (emphasis added). This Court has consistently held that the fifteen day rule is strictly applied. Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996). See also Dumberth v. Unemployment Compensation Board of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003) ( appeal provisions of the law are mandatory ) (quoting United States Postal Service v. Unemployment Compensation Board of Review, 620 A.2d 572, 573 (Pa. Cmwlth. 1993)); Phares v. Unemployment Compensation Board of Review, 482 A.2d 1187, 1188 (Pa. Cmwlth. 1984) ( statutory time period for appeals under Section 501(a) is mandatory ). Where notice is mailed to a claimant's last known address and not returned by the postal authorities as undeliverable, the claimant is presumed to have received it and is barred from attempting to appeal after the expiration of the appeal period provided in Section 501(e) of the Law. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979). After the fifteen day period, the determinations become final, and the Board will not have jurisdiction to hear the matter. Darroch v. Unemployment Compensation Board of Review, 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993). There are limited exceptions to the fifteen day rule. If fraud or a breakdown of the administrative process can be shown, then the court will review nunc pro tunc. Stana v. Unemployment Compensation Board of Review, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). Negligence by an administrative official in the agency may be analogized to fraud. Id. Additionally, if an authorized agent of the Service Center 4 unintentionally misleads a claimant, the courts can relieve an innocent party of a resulting injury. Id. A review of the record shows that the Notice clearly indicates, four times, that [t]he final day to timely appeal this determination is March, 26, 2007. (Notice at 12, Item 8.) Here, as correctly reflected in the Referee s Findings of Fact, although the Notice clearly reflected an appeal deadline of March 26, 2007, Claimant s appeal was not received until March 29, 2007. (Claimant s Petition for Appeal, Item 9; FOF ¶¶ 3-4, Item 13.) Further, there is no evidence in the record that indicates that the mailed Notice was not received by Claimant. The Referee properly deemed the Notice received because it was not returned by the Postal Authorities. (FOF ¶ 2, Item 13.) While Claimant argues that he relied on the statements of an employee of the Service Center, the last day to file an appeal had already expired three days earlier, and the Referee correctly found that Claimant was not misled.3 (FOF ¶ 5, Item 13.) 3 Claimant argues the doctrine of promissory estoppel; however, his reliance is misplaced. In order to succeed under the legal theory of promissory estoppel, the aggrieved party must show: 1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; 2) the promisee actually took action or refrained from taking action in reliance on the promise; and 3) injustice can be avoided only by enforcing the promise. Crouse v. Cyclops Indus., 560 Pa. 394, 403, 745 A.2d 606, 610 (2000) (citing Restatement (Second) of Contracts § 90 (1981)). Alleged ministerial instructions by an office secretary after a filing deadline has passed do not amount to an effective extension of time to file. As explained by our Supreme Court: It is also the law of Pennsylvania that the Commonwealth or its subdivisions and instrumentalities cannot be estopped by the acts of its agents and employees if those acts are outside the agent's powers, in violation of positive law, or acts (Continued ¦) 5 Additionally, Claimant admits that he did not read the entire Notice, of which he was in receipt of for approximately two weeks before contacting an attorney. (Referee s Hr g Tr. at 9, 14.) Furthermore, none of the exceptions to the fifteen day rule apply to the present case. The Referee found that Claimant was not misled or misinformed by any unemployment compensation representative concerning Claimant s right to file an appeal. (FOF ¶ 5, Item 13.) There is no evidence in the record of a breakdown of the administrative process. Furthermore, the Board specifically noted that it was Claimant s own negligence that caused the appeal to be untimely. (Board s Order, Item 17; Referee s Hr g Tr. at 9-15.) Claimant also argues that the appeal petition was only three days late, equating to a de minims infraction, and that his appeal should not be dismissed for such. (Claimant s Br. at 15). However, pursuant to this Court s decision in Dumberth, Claimant s argument cannot prevail. In Dumberth, this Court explained that [a]ppeal periods, even at the administrative level, are jurisdictional and may not be extended as a matter of grace or indulgence; otherwise, there would be no finality to judicial action. Id., 837 A.2d at 681. Further, this Court stated that even if the appeal is one day late, it must still be dismissed as untimely. Id. Therefore, Claimant s de minimis argument must fail. which require legislative or executive action. Kellams v. Public Sch. Emp. Retirement Bd., 486 Pa. 95, 403 A.2d 1315, 1318 (1979). Central Storage & Transfer Co. v. Kaplan, 487 Pa. 485, 489, 410 A.2d 292, 294 (1979) (using Restatement (Second) of Contracts § 90, cited above). Permitting this claim would amount to a violation of Section 501(e) of the Law. 6 Lastly, Claimant makes two arguments on the merits: (1) improper termination;4 and (2) entitlement to unemployment compensation.5 (Claimant s Br. at 10-11.) This Court will not address these two arguments because an untimely appeal finalizes the Board s decision and the merits of the case are then beyond the jurisdiction of this Court. DiIenno v. Unemployment Compensation Board of Review, 429 A.2d 1288, 1289 (Pa. Cmwlth. 1981) (refusing to address the merits of a claim because the appeal was found untimely). See also DiJohn v. Unemployment Compensation Board of Review, 687 A.2d 1213, 1215 (Pa. Cmwlth. 1997) (stating that the time to file an appeal is jurisdictional and if not filed timely precludes the Board from further consideration); Das v. Unemployment Compensation Board of Review, 399 A.2d 816, 817 (Pa. Cmwlth. 1979) (finding the appeal untimely, the Board s decision was final and the merits could no longer be considered). 4 Although dismissed on other grounds, Claimant s first argument, that he was improperly terminated, lacks any legal support for his position. Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure provides that [t]he argument shall be divided into as many parts as there are questions to be argued . . . followed by such discussion and citation of authorities as are deemed pertinent. Pa. R.A.P. 2119(a). 5 Claimant inartfully argues that [t]he unemployment representative on February 7, 2007 properly ruled that Albert G. Eberle was entitled to unemployment compensation benefits. (Claimant s Br. at 11.) However, a review of the record fails to show where the unemployment compensation agency ever ruled in favor of Claimant. Therefore, we are unable to address this issue. Furthermore, under this same argument, Claimant appears to be raising a Fourteenth Amendment procedural Due Process claim arguing that, because the Referee would not hear testimony on the merits, his Due Process rights were violated. However, the sole issue before the Referee was timeliness; the merits were not at issue. 7 Based on the foregoing opinion, the decision of the Board, finding Claimant s appeal untimely, is affirmed. ________________________________ RENÃ E COHN JUBELIRER, Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Albert G. Eberle, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : : : No. 1438 C.D. 2007 ORDER NOW, February 11, 2008, the order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby affirmed. _________________________________ RENÃ E COHN JUBELIRER, Judge

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