Wednesday, September 27, 2006

admin. law - late appeal - filing by email

McClean v. UCBR - Commonwealth Court - September 27, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/716CD06_9-27-06.pdf

An appeal from a referee decision to the UCBR was not timely filed where it was sent by email within the 15-day appeal period but not received by UCBR within that period under 43 P.S. sec. 822 and 34 Pa. Code sec. 101.82(b)(4)

The email was sent well within the appeal period but apparently not received by the UCBR until after the 15-day appeal period had run. The claimant's attorney sent another appeal by regular mail, but that was filed one day late. The Board rejected the appeal on the ground that it did not have jurisdiction.

The statute, 43 P.S. sec. 822, http://members.aol.com/StatutesP4/43.Cp.14.5.html, says that a referee decision is final unless an appeal is filed "within first days after the date of such decision."

The regulation, 34 Pa. Code 101.82(b)(4), http://www.pacode.com/secure/data/034/chapter101/s101.82.html, allows the filing of an appeal by electronic transmission but stipulates that the "date of filing is the receipt date recorded by the Department appeal office....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 documents and accepts that risk that the appeal may not be properly or timely filed." (emphasis in original)

The court said that the "fifteen-day time limit is mandatory" and that the Board lacks jurisdiction to consider an untimely appeal, citing Shea v. UCBR, 898 A.2d 31, 33 (Pa. Cmwlth. 2006). "The Department...has established strict, unambiguous requirements for filing an appeal." Vereb v. UCBR, 676 A.2d 1290, 1294 (Pa. Cmwlth. 1996).

The court said that there were no grounds for an nunc pro tunc appeal, J.A. v. DPW, 873 A.2d 782, 785 (Pa. Cmwlth. 2005)

The court also held that the provision of Pa. C.R.P. 205.4(e)(2) regarding electronic filing do not apply to administrative actions.

>