D. C. Dupree v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA DiShaw'ta C. Dupree, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1934 C.D. 2007 Submitted: April 4, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: May 13, 2008 DiShaw ta C. Dupree (Claimant), representing herself, petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed a referee s order dismissing as untimely her appeal from the UC Service Center s (job center) determination ruling her ineligible for unemployment compensation (UC) benefits. Claimant asserts she did not timely receive the notice of determination and other documents pertaining to her case because her mail carrier placed them in her neighbor s mailbox. Claimant thus contends that she had good cause for requesting an appeal nunc pro tunc (late appeal by permission) and that substantial evidence does not support the Board s contrary finding. For the following reasons, we affirm. In its determination, the job center found Claimant last worked as a certified nursing assistant for Broomall Rehab and Nursing, LLC (Employer). In May 2007, Claimant voluntarily quit in order to become the primary caregiver for her ill mother. She exhausted all alternatives prior to quitting. However, the job center found Claimant s availability for work adversely affected because she stated she was still taking care of her mother. Noting Claimant demonstrated she exhausted all alternatives prior to voluntarily leaving employment to care for her mother, the job center found Claimant met her burden of proving necessitous and compelling cause for a voluntarily quit under Section 402(b) of the Unemployment Compensation Law (Law).1 However, the job center ruled Claimant ineligible for benefits under Section 401(d)(1) of the Law2 because she failed to establish she was able and available for suitable work. The job center s notice of determination included a mailing date of June 18, 2007, and indicated July 3, 2007 as the last day to timely appeal. Certified Record (C.R.) at Item 6, Notice of Determination. On July 13, 2007, Claimant filed her appeal. Thereafter, the Board notified the parties of a referee s hearing scheduled for August 6, 2007. Id. at Item 9, Notice of Hearing. The referee limited the hearing to the issue of whether Claimant timely appealed under Section 1 Act of December 5, 1936, Second Ex. Sess., P.L. 2897 (1937), as amended, 43 P.S. §802(b). Section 402(b) provides [a]n employe shall be ineligible for compensation for any week ¦ [i]n which [her] unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature ¦. 2 43 P.S. §801(d)(1). Section 401(d)(1) provides [c]ompensation shall be payable to any employe who is or becomes unemployed, and who ¦ [is] able to work and available for suitable work ¦. 2 501(e) of the Law.3 Claimant failed to attend the hearing. Employer s Nursing Director appeared and testified for Employer. At the hearing, the referee noted: Claimant has failed to appear at today s hearing, and there is nothing in the appeal file to indicate that the Claimant s Notice of Hearing was returned by the Postal authorities or that the Claimant contacted the Referee s office to request a continuance or otherwise explain her reasons for not appearing. C.R. at Item 10, Notes of Testimony (N.T.) at 3. Thereafter, the referee issued an order holding Claimant s appeal untimely under Section 501(e). The referee found the job center mailed a copy of its determination to Claimant s last known post office address and that the postal authorities did not return it as undeliverable. The referee further found Claimant was not misinformed nor in any was misled regarding the right of appeal or the need to appeal. Referee Dec., Finding of Fact No. 5. Claimant timely appealed the referee s order. In affirming, the Board noted, [t]he competent evidence of record and the testimony provided by 3 Section 501(e) of the Law, 43 P.S. §821(e), provides in part that a party must appeal a determination within 15 days after notice was delivered or mailed to his or her address. Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447 (Pa. Cmwlth. 1994). It is well settled that the statutory time limit for filing an appeal is mandatory in the absence of fraud or manifestly wrongful or negligent conduct of the administrative authorities. Id. at 449. 3 [Employer], the sole witness at the [r]eferee s hearing, do not establish [Claimant] had good cause for filing a late appeal. Bd. Order at 1. Claimant appealed here.4 Claimant argues the Board erred in determining she lacked good cause for a late appeal without considering the information she provided in her appeal to the Board. In particular, Claimant asserts her mail carrier placed the notice of determination, notice of hearing and other documents pertaining to her case in her neighbor s mailbox.5 Claimant maintains this is an ongoing problem and that she reported it to her landlord and the post office. As a result, she did not receive the notice of determination before expiration of the appeal period. She also did not receive timely notice of the referee s hearing and, as a result, failed to attend the hearing. Claimant asserts the Board should have considered these circumstances in determining whether she had good cause for a late appeal. 4 Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether constitutional rights were violated, or whether errors of law were made. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008). 5 Claimant attached to her brief a handwritten note, which stated: In July of 2007 I found a letter for [Claimant], I was away and the letter was mistakenly placed in my mailbox. If you have any questions regarding this please contact me ¦. Thank you, [s/ Lee Ann Arden] Claimant s Br. at 10. 4 The Board counters that Claimant failed to preserve her nonappearance at the referee s hearing as an issue by failing to raise it in her appeal to the Board or in the statement of questions in her brief to this Court. Issues not raised before the government unit cannot be raised for the first time on appeal to this Court. Pa. R.A.P. 1551(a); Goodwill Indus. v. Unemployment Comp. Bd. of Review, 634 A.2d 738 (Pa. Cmwlth. 1993). Also, an appellant waives issues not raised in her statement of questions in her brief to this Court. Pa. R.A.P. 2116(a); Metrick v. Civil Serv. Comm n, 687 A.2d 26 (Pa. Cmwlth. 1996). In particular, the Board argues the certified record does not support Claimant s assertions that she raised her failure to attend the referee s hearing as an issue in her appeal to the Board. Claimant s letter of appeal, attached to her appeal petition to the Board, stated: I [Claimant] state that this letter verifies the reason and reasons that I am no longer employed ¦ at [Employer]. My mother needed a very serious operation ¦ which she had on May 18, 2007. I had asked [Nursing Director] for a 30 day leave of absence in which I was not granted instead of the 30 days that I did not get she insisted I take a leave of absence anyway and that I write a letter stating I still needed 30 days off. My mother informed me to call for my job and inform [Nursing Director] that I did not need 30 days in which I did on May 29th, 2007 I was told my job was no longer available after being told that my position would still b[e] available but at a different time start [sic]. I am and had been available for work since May 30th, 2007 and feel I should have been given my position back due to the serious [sic] of my leaving and me having a letter from my mother[ s] doctors and surgeons. After all, August 2007 would have made me employed for 1 year and I 5 truly feel we could have worked out something more of an early vacation time instead of me losing my job. I am a young mother with a 2 year old daughter trying to survive by working and not receiving any assistance. Therefore if at all possible could any determination that has been made be reviewed again, if not for my job back then for unemployment compensation. I do not feel as though I voluntar[ily] quit my job under any circumstances. C.R. at Item 12, Claimant s Petition for Appeal from Referee s Decision. After reviewing the record, we agree with the Board. In her appeal to the Board, Claimant did not specifically raise the issue of good cause for a late appeal or discuss her reasons for her not appearing at the referee s hearing. Rather, the record reflects Claimant raised these issues for the first time before this Court. Accordingly, we must conclude they were not properly preserved for appeal. Pa. R.A.P. 1551(a); Goodwill Indus. Even assuming Claimant preserved the issue of whether she had good cause justifying a late appeal, the certified record supports the referee s findings and conclusions, which the Board adopted and incorporated into its order. The record shows the job center s notice of determination included Claimant s correct mailing address: 4248 PARKSIDE AVE. 3RD FL. REAR, PHILADELPHIA PA 19104. C.R. at Item 6, Notice of Determination at 1. The notice also includes a mailing date of June 18, 2007. Id. In its Appeal Instructions, the notice stated: The last day to timely appeal this determination is: July 03, 2007. Id. This information is also set forth at the bottom of all three pages of the notice. Additionally, the certified record includes a claim record showing the notice of 6 determination denying Claimant benefits under Section 401(d)(1) of the Law (able and available for suitable work), was mailed on June 18, 2007. Id. at Item 1, Claim Record. Further, the referee noted nothing in the file indicated the notice of determination was returned by the postal authorities as undeliverable. Id. at Item 10, N.T. at 3. The referee also noted Claimant never contacted the referee s office to ask for a continuance or explain her reasons for not appearing at the hearing. Id. Consequently, the record provides substantial evidence for the referee s finding that Claimant was not misinformed nor in any way misled regarding the right to appeal or the need to appeal. Referee s Dec.; Finding of Fact No. 5. In Blast Intermediate Unit #17 v. Unemployment Comp. Bd. of Review, 645 A.2d 447 (Pa. Cmwlth. 1994), we recognized there is a presumption that notices are timely received if they were mailed to the proper address and not returned by the postal authorities as undeliverable. Moreover, where there is a notation on the record that some act was performed by a public official, a second presumption arises that the act was properly performed. Id. Such is the case here. However, the Board may consider an untimely appeal in limited circumstances. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). The burden to establish the right to have an untimely appeal considered is a heavy one because the statutory time limit established for appeals is mandatory. Id. An appellant may satisfy this heavy burden in one of two ways. Id. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Id. Second, he can show non-negligent conduct beyond his control caused the delay. Id. 7 A late appeal may be permitted when a referee decision is mailed to an incorrect address; adequate assistance is not provided to a claimant with a cognitive impairment; or, an official misleads a litigant as to the proper procedure for filing an appeal. Id. As discussed above, the job center s notice of determination was mailed to Claimant s correct address, and she was not misled as to the proper procedure for filing an appeal. Nonetheless, we recognize that a mail carrier s delivery of mail to the wrong mailbox may provide an adequate excuse for filing a late appeal. However, we are bound by the facts certified in the record. Tener v. Unemployment Comp. Bd. of Review, 568 A.2d 733 (Pa. Cmwlth. 1990). Although Claimant attached to her brief to this Court a handwritten note from her neighbor Lee Ann Arden stating that in July 2007, a letter was mistakenly placed in her mailbox, we may not consider this extra-record statement on appeal. See Croft (this Court may not consider on appeal auxiliary information appended to a brief that is not a part of the certified record).6 Discerning no error, we affirm the Board s order. ROBERT SIMPSON, Judge 6 As discussed above, the certified record does not reflect that Claimant attached her neighbor s statement in her appeal to the Board. Even if she did, we note the Board, in its determination, may not consider post-hearing factual communications not previously submitted. Croft v. Unemployment Comp. Bd. of Review, 662 A.2d 24 (Pa. Cmwtlh. 1995). 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA DiShaw'ta C. Dupree, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1934 C.D. 2007 ORDER AND NOW, this 13th day of May, 2008, the order of the Unemployment Compensation Board of Review is AFFIRMED. ROBERT SIMPSON, Judge

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