K. A. Zellman v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kari A. Zellman, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1588 C.D. 2007 SUBMITTED: January 4, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 31, 2008 Kari A. Zellman (Claimant), proceeding pro se, petitions for review of the order of the Unemployment Compensation Board of Review (Board) which dismissed her appeal as untimely. Claimant asserts that the Board erred because an administrative breakdown caused the delay in filing her appeal and her own conduct in following up on the status of her appeal was non-negligent. Thus, she contends the Board should have permitted her to file her appeal nunc pro tunc. We affirm. According to the Board s unchallenged findings, Claimant filed a claim and was determined eligible for benefits in November 2006. In March 2007, Claimant returned to work with another employer. After approximately two weeks, Claimant separated from the new employer and filed a claim for the week ending April 7, 2007. On May 2, the unemployment compensation service center mailed a determination to Claimant denying eligibility on the claim for the week ending April 7. The May 2 determination letter contained accurate appeal instructions and notice in three places that the final date by which to appeal the denial of benefits was May 17, 2007. Claimant called the service center on May 4 and was informed that the quickest way to file an appeal was by electronic mail. Claimant believes that she sent a statement of appeal by email on or about May 4. Claimant took no further action until May 21, 2007, when she contacted the service center to ascertain the status of her appeal. A service center representative informed Claimant that there was no record of an appeal received by email. Claimant immediately emailed another statement of appeal, which the service center processed as filed on May 21, 2007.1 The service center denied benefits and Claimant appealed. Claimant appeared and testified at a hearing and the referee determined that pursuant to Section 501(e) of the Unemployment Compensation Law,2 43 P.S. § 821(e), and Section 101.82 of the Pennsylvania Code, 34 Pa. Code § 101.82, Claimant s appeal was untimely as it was filed four days beyond the 15 day deadline. Claimant appealed to the Board which adopted the referee s findings of fact and affirmed the dismissal of Claimant s appeal. This appeal followed. 1 We note that the findings of the Board/referee state that Claimant s appeal was filed upon receipt April 21, 2007. This is clearly a typographical error as the record reflects that the appeal was filed on May 21, 2007. 2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§ 751 914. 2 Claimant contends that she filed her claim via email in a timely manner, but that the service center did not receive her email because of an administrative breakdown. A nunc pro tunc appeal may be allowed where extraordinary circumstances involving fraud or some breakdown in the administrative process caused the delay in filing, or where non-negligent circumstances related to the appellant, his or her counsel or a third party caused the delay. McClean v. Unemployment Comp. Bd. of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006). Claimant asserts that because the service center did not receive her May 4 email that an administrative breakdown occurred.3 However, the failure of an email transmission does not constitute an administrative breakdown. The Board s regulations regarding the submission of an appeal via email clearly state that the claimant assumes the risk that the appeal may not be timely filed due to delay, disruption or interruption of electronic signals.4 See 34 Pa. Code § 101.82(b)(4); McClean, 908 A.2d at 959. Accordingly, the Board properly found that Claimant s appeal was not filed in a timely manner. 3 We note that Claimant did not offer any proof other than her own statements that she sent her appeal by email on May 4. 4 The regulation in its entirety provides: Electronic transmission other than fax transmission. The date of filing is the receipt date recorded by the Department appeal office or the Board s electronic transmission system, if the electronic record is in a form capable of being processed by that system. A party filing by electronic transmission shall comply with Department instructions concerning format. A party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed. 34 Pa. Code. § 101.82(b)(4) (Emphasis in original and added). 3 Claimant also contends that she should have been permitted to file an appeal nunc pro tunc because her behavior in following up on the status of her appeal was non-negligent. Assuming Claimant filed her appeal electronically on May 4 as alleged, she did not follow up with the service center until May 21, seventeen days later. Claimant was required to file her appeal no later than May 17. At no time in the thirteen days between May 4 and May 17 did Claimant contact the service center to inquire as to why she had not received a response to her appeal submitted by email. Claimant contacted the service center only after the time for appeal had expired. Claimant had ample opportunity within the statutory appeal period to ensure that the service center had received her appeal. Claimant s failure to contact the service center prior to expiration of the appeal period does not constitute non-negligent behavior. See McClean, 908 A.2d at 959 (dismissing appeal of claimant who allegedly filed an appeal via email, but did not contact the service center to confirm receipt until one day after the expiration of the statutory appeal period). Accordingly, the Board properly denied nunc pro tunc relief. We affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kari A. Zellman, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1588 C.D. 2007 ORDER AND NOW, this 31st day of January, 2008, the order of the Unemployment Compensation Board of Review in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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