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 Court – unpublished memorandum opinion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).

 

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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]


If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

UC - willful misconduct - actual cause of termination - waiver - "standard of conduct" - UCBR is fact-finder


Holdings Acquisition Co., dba Rivers Casino v. UCBR – Cmwlth. Court – 10-19-15 – unreported memorandum opinion

 


 

In this willful misconduct case, the claimant was found eligible (or as they like to say, not ineligible), because

 

            - employer claim in Cmwlth Court appeal was not raised before the referee or board, so it was waiver --   An employer “must prove that the act in question was the actual reason for the claimant’s discharge.” Browning–Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 561 A.2d 856, 857 (Pa. Cmwlth. 1989). Issues not properly raised before the Referee and the Board are waived on appeal. See Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981) (quoting Zakrzewski v. Unemployment Compensation Board of Review, 381 A.2d 503, 504 (Pa. 1978)) (holding that issue “is not properly before us” because it was not presented to Referee or Board).  Waiver is also embodied in Pennsylvania Rule of Appellate Procedure 1551(a) 

 

            - standard of conduct is “not an exact science” -  In Woodson v. Unemployment Compensation Board of Review, 336 A.2d 867 (Pa. 1975), the Supreme Court explained: “A determination of whether an employee has engaged in willful misconduct can ... only be made by considering what standard of conduct an employer reasonably requires. Standards expected by one employer may of course not be the standards of another employer. Willful misconduct cannot therefore be considered in a vacuum. It must be considered in relation to the particular employees and to the reasonable standards expected by a particular employer.”  Id. at 868 (emphasis added). Stated otherwise, the “standard of conduct” analysis is not an exact science.

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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]


If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)

 

 

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