Wednesday, November 04, 2015

UC - late appeal - nunc pro tunc rejected


Suber v. UCBR – Cmwlth. Court – November 2, 2015

 


 

Court affirmed the UCBR decision to dismiss an appeal that was filed late, because it was sent to the wrong fax number by the office of the claimant’s state senator, to whom he’d gone for assistance in filing the appeal.  The Board found as a fact that the senator’s employee faxed the document well within the applicable appeal deadline, but to the wrong fax #.   After inquiry, the appeal was faxed to the proper # and was received by the Board on October 9.  The appeal deadline was September 22.

 

The court held that that “fifteen-day time limit for filing an appeal from a Department determination is mandatory. UGI Utilities, Inc. v. UCBR, 776 A.2d 344, 347 (Pa. Cmwlth. 2001). The UCBR’s regulations permit several methods for filing an appeal, including by fax. 34 Pa. Code §101.82(b)(3). However, “a party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.” 34 Pa. Code §101.82(b)(3)(ii) (emphasis added).” 

 

The court rejected the nunc pro tunc argument.  “An appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown, or non-negligent conduct, either by a third party or by the appellant.” Mountain Home Beagle Media v. UCBR, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). The burden to justify an untimely appeal is heavy. Blast Intermediate Unit #17 v. UCBR, 645 A.2d 447, 449 (Pa. Cmwlth. 1994). “An appellant may satisfy this heavy burden in one of two ways. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, he can show non-negligent conduct beyond his control caused the delay.” Hessou v. UCBR, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). Here, Claimant maintains that he gave the senator’s employee the correct fax number and that his late appeal was attributable only to the negligent acts of a third party, the senator’s employee.

 

Both parties cite to this court’s unreported decision in Stevens v. UCBR, (Pa. Cmwlth., No. 1353 C.D. 2013, filed April 3, 2014).   In Stevens, the claimant’s counsel misdialed and faxed the appeal to an incorrect number. Slip op. at 3-4. This court agreed with the UCBR that counsel’s mistake in sending the appeal letter to the incorrect fax number did not qualify for nunc pro tunc relief. Id. at 8-9. This court concluded that “this is not the type of non-negligent conduct that was beyond the control of [the] [c]laimant or [the] [c]laimant’s attorney. The transmission verification report . . . clearly shows that the appeal was faxed to an incorrect number.”    

 

Similarly, in this case, the transmission verification reports show that Claimant’s appeal was faxed to an incorrect number. As in Stevens, Claimant failed to verify that the fax was sent to the correct number. [n. 6 - In Wright v. Unemployment Compensation Board of Review, 41 A.3d 58, 60 (Pa. Cmwlth. 2011) (en banc), in determining that the claimant filed a timely appeal, this court considered a document from the claimant’s telephone carrier showing that a fax was successfully transmitted to the phone number listed in the notice of determination on the date in question.]

 

Nonetheless, Claimant argues that Stevens is distinguishable because the mistake here was not caused by counsel but by a third party who was not part of the litigation process. Arguing that he was not negligent, Claimant maintains that an appeal nunc pro tunc is warranted. See Walker v. UCBR , 461 A.2d 346-47 (Pa. Cmwlth. 1983) (holding that the failure of a post office to forward the notice of decision to appellant’s new address warranted nunc pro tunc appeal).

 

Here, Claimant chose to file an appeal via fax and accepted the risk that the appeal would not be properly or timely filed. See 34 Pa. Code §101.82(b)(3)(ii). As in Stevens, Claimant, via a third party, faxed the appeal to an incorrect number and failed to check the transmission verification report. These actions, whether performed by Claimant, counsel, or a third party, do not constitute non-negligent conduct warranting a nunc pro tunc appeal.

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