Monday, November 02, 2015

UC - appeal - nunc pro tunc - breakdown in admin. process

Petro v. UCBR – October 19, 2015 – Cmwlth. Court – unpublished memorandum opinion



Late appeal allowed because of breakdown in administrative process.


The Referee issued two decisions holding that Claimant’s appeals were untimely. Employer then wrote to the Board that Claimant’s separation from employment was due to a lack of work and that its earlier report that it was due to misconduct was incorrect, but the Board affirmed the Referee’s decisions.


The Board erred in denying his appeal nunc pro tunc  ,because there was a breakdown in the administrative process consisting of the UC Service Center twice approving his application for benefits without any objection from Employer. One year later, after benefits had ceased, Employer submitted inaccurate information about the reason for one of several separationss fro employment. Further, Employer acknowledges that its information was inaccurate. There was no misrepresentation on Claimant’s part. The Department’s delays in considering his eligibility for unemployment compensation created a breakdown in the administrative process.

Section 501(e) of the Law requires that an appeal from a notice of determination be filed within 15 days from the date the notice was delivered to the claimant. 43 P.S. §821(e).   However, appeals can be accepted nunc pro tunc, or “now for then,” after the 15-day period under certain narrow circumstances. Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appeal nunc pro tunc will be allowed where the late filing is caused by extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent conduct of the claimant or his counsel. Cook v. UCBR, 671 A.2d 1130, 1131 (Pa. 1996).

 A breakdown in the administrative process occurs when “an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000). In the context of unemployment compensation appeals, an administrative breakdown occurs when, for example, “a referee’s decision is mailed to an incorrect address; adequate assistance is not provided to a claimant with cognitive impairment; or, an official misleads a litigant as to the proper procedure for filing an appeal.” Hessou, 942 A.2d at 198.

Here, there are gaps in the record that impede meaningful, effective appellate review. According to the Board, Claimant was issued a UC-44 determination that found Claimant eligible for benefits because the Department “received no information from Employer to the contrary.”


However, a remand is necessary because the record contains no records that might explain why the UC Service Center did not hear an objection from Employer on Claimant’s application when it was submitted in February 2013. The Department’s 2014 questionnaire to Claimant asked about his separation from employment, which was confusing because it was sent at a time when he was once again employed full-time by Employer.   A complete record is needed, including the request for relief from charges; the information submitted by Employer to the UC Service Center when Claimant applied for unemployment benefits in February 2013; and the paperwork referenced in Employer’s letter to the Referee. As the record currently stands, we are unable to ascertain whether there was a breakdown in the administrative process to allow Claimant to appeal nunc pro tunc. Remand is the appropriate remedy when effective appellate review cannot be done. Fontana v. Unemployment Compensation Board of Review, 454 A.2d 678, 679 (Pa. Cmwlth. 1983).



An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

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