D. B. Johnson v. UCBR (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA David B. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : No. 1134 C.D. 2010 : Submitted: October 15, 2010 : : : HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE PELLEGRINI FILED: December 22, 2010 David B. Johnson (Claimant) appeals from the decision of the Unemployment Compensation Board of Review (Board) dismissing his appeal from the determination of the Referee denying him unemployment compensation benefits. For the reasons that follow, we affirm. Claimant was employed for six months in an unknown capacity at World Flavors (Employer) through a work-release program while incarcerated. Claimant s employment ended because the Department of Corrections terminated the program with Employer, so Claimant, who was still incarcerated, was unable to go to work. Some months later, following his release from jail, Claimant filed for unemployment compensation benefits. The Department of Labor and Industry (Department) issued a determination ruling that Claimant was ineligible for benefits because he was incarcerated due to a conviction. In addition, the Department found that Claimant earned only $192 in some later, unknown employment following his incarceration, which also did not qualify him for unemployment compensation benefits. Claimant appealed to the Referee, who affirmed following Claimant s failure to appear at the hearing to present testimony and evidence on the issues under appeal. The Referee s decision was dated December 22, 2009. It stated that Claimant had 15 days to file an appeal to the Board.1 It specifically indicated that January 6, 2010, was the last day that an appeal could be filed. The decision, which was mailed to Claimant, was not returned undeliverable. Claimant did not file his pro se appeal until January 8, 2010. On his appeal, he listed the same address to which the Referee s decision had been mailed. His appeal stated only, That unemployment belongs to me I work my ass off for that inc and you are going to take that from me. (Original Record, Tab 12). Claimant received a letter from the Board stating that his appeal was untimely and that if he wished to contest the timeliness of the appeal, he must 1 Section 502 of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. 1224, as amended, 73 P.S. §822, provides, in relevant part: [T]he referee s decision . . . shall be deemed the final decision of the board, unless an appeal is filed therefrom, within fifteen days after the date of such decision. 2 request a hearing before the Board. Claimant, now represented by counsel, did so, and a hearing was held. At the hearing, Claimant testified that he was homeless. He had only stayed at the address to which the appeal was sent for a couple of weeks before moving out slightly before the Referee s decision was mailed to him. He kept receiving his mail there, however, and eventually found the decision. He faxed his appeal to the Board the same day he discovered the Referee s decision in his mail. The Board, specifically discrediting Claimant s testimony that he was homeless and had not received the Referee s decision until the day he filed the appeal, dismissed his appeal as untimely. The reasons the Board gave for discrediting Claimant s testimony were that he did not inform the Department that he had changed his address until over a month after the appeal was filed and because he used the same address in his appeal that he testified he no longer had. Additionally, the Board stated that even if the appeal had been timely filed, it would have dismissed it anyhow because Claimant failed to raise any specific issues for review. Claimant then appealed to this Court.2 On appeal, Claimant contends that his appeal was timely filed because three days mailing time should be added to the end of the 15-day period, which would have given him until January 9, 2010, to file the appeal. Alternatively, 2 Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Glassmire v. Unemployment Compensation Board of Review, 856 A.2d 269 (Pa. Cmwlth. 2004). 3 holidays such as Christmas and New Year s, which do not have mail service, should be discounted when calculating the 15 days. Failure to do either of those would render the 15-day appeal period an unconstitutional violation of Claimant s due process. Claimant s contentions that his appeal was timely or that his due process rights were violated are meritless. Section 502 of the Act clearly states that an appeal must be filed within 15 days of the final decision of the Board. Furthermore, the Board specifically discredited Claimant s testimony that he was homeless during the appeal period and did not receive the decision until the 15 days had expired. He, therefore, had no excuse that could have conceivably have resulted in permission to file his appeal nunc pro tunc.3 Moreover, this limited appeal period in no way affected Claimant s due process rights. The hallmarks of due process are notice and opportunity to be heard. Erie Sports Bar, Inc. v. Pennsylvania State Police, Bureau of Liquor Control Enforcement, 6 A.3 663 (Pa. Cmwlth. 2010). Claimant had notice of the Board s decision, as he received it in the mail, and he had 15 days to be heard.4 3 An appeal may be filed late that is nunc pro tunc, if there was an allegation of fraud, a breakdown of the administrative process, or non-negligent circumstances related to the petitioner, his counsel or a third party. C.S. v. Department of Public Welfare, 879 A.2d 1274 (Pa. Cmwlth. 2005). 4 In any event, Claimant s appeal would have obviously been dismissed even if it had been timely. In his appeal, Claimant stated only, That unemployment belongs to me I work my ass off for that inc and you are going to take that from me. This statement did not preserve any issues for appeal. Failure to include specific reasons for appeal results in waiver of those issues. Merida v. Unemployment Compensation Board of Review, 543 A.2d 593 (Pa. Cmwlth. 1988). With all issues waived, his appeal would have been dismissed even if timely. 4 Accordingly, as Claimant has presented no basis for a nunc pro tunc appeal, the decision of the Board quashing his appeal is affirmed. _________________________________ DAN PELLEGRINI, JUDGE 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA David B. Johnson, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : No. 1134 C.D. 2010 : : : : ORDER AND NOW, this 22nd day of December, 2010, the determination of the Unemployment Compensation Board of Review, Decision No. B-500556, dated June 1, 2010, is affirmed. _________________________________ DAN PELLEGRINI, JUDGE
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