Tuesday, August 16, 2011

UC - appeal - nunc pro tunc - pro se litigant

Miller v. UCBR - Cmwlth. Court - August 11, 2011 - unreported memorandum opinion





Section 501(e) of the Unemployment Compensation Law (Law), 43 P.S. §821(e), requires appeals of Bureau determinations to be filed within 15 days of the mailing date of the determination or the date on which the determination becomes final. After the 15-day appeal period has expired, the Referee and the Board do not have jurisdiction to consider the appeal. Darroch v. UCBR, 627 A.2d 1235, 1237 (Pa. Cmwlth. 1993).


The UCBR may consider an untimely appeal on a nunc pro tunc basis. UCBR v. Hart, 348 A.2d 497, 498 (Pa. Cmwlth. 1975). The burden to establish the right to nunc pro tunc relief is a heavy one because the statutory time limit established for appeals is mandatory. Blast Intermediate Unit No. 17 v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). An appellant may satisfy this heavy burden by showing: (1) fraudulent, wrongful or negligent conduct on the part of the administrative agency; or (2) non-negligent conduct beyond the appellant’s control that caused the delay. Bass v. Commonwealth, 485 Pa. 256, 259-260, 401 A.2d 1133, 1135 (1979).


According to Claimant, his lack of legal counsel caused a misunderstanding concerning the timeliness of his appeal. "While sympathetic to pro se litigants, this Court has held, repeatedly, that 'any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.' " Vann v. UCBR, 508 Pa. 139, 148, 148, 494 A.2d 1081, 1086 (1985). Simply put, Claimant has not carried his heavy burden to show that he is entitled to appeal the Board’s order nunc pro tunc. Claimant cannot rely on his lack of legal counsel as an excuse for not taking earlier action since "Claimant assumed the risk that his lack of expertise and legal training would prove his undoing." . . . Vann, 508 Pa. 139, 148, 494 A.2d 1081, 1086.


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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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