Friday, February 22, 2019

UC - late appeal - admission to medical facility


Jenkins v. UCBR – Cmwlth. Court – October 30, 2018 – ordered to be reported 2-15-19


Held:  Claimant’s absence from his mailing address during the appeal period was attributable to non-negligent conduct, i.e. his admission to an inpatient drug treatment facility for a one-month period.   His late appeal was allowed and the case remanded for a hearing on the merits, i.e., whether his suspension for willful misconduct (excessive absenteeism and tardiness) was willful misconduct.  The claimant, who was not computer literate, tried to contact the UCSC by phone while he was in treatment, but got a busy signal every time.  The referee and Board credited the claimant’s testimony in that regard.

Nunc pro tunc appeals
An appeal nunc pro tunc is permitted when the appeal delay results from extraordinary circumstances involving fraud or some breakdown in the administrative process. McClean v. UCBR, 908 A.2d 956, 959 (Pa. Cmwlth. 2006). In Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), this standard was relaxed somewhat. In that case, the appellant’s attorney had his secretary prepare appeal papers for the appellant six days prior to the appeal deadline. The secretary was responsible for filing the appeal and ensuring that all secretarial work for the office was performed. The secretary fell ill and was out of the office for a week, during which time the appeal deadline passed. She filed the appeal within three days of her return to work. Our Supreme Court allowed the appeal to proceed nunc pro tunc because the delay was caused by the non-negligent act of a third party and was promptly corrected.

Non-negligent conduct of claimant or counsel
More recently, in Cook v. UCBR, 671 A.2d 1130 (Pa. 1996), our Supreme Court extended the Bass principles to allow a nunc pro tunc appeal where the non-negligent conduct was that of the appellant himself. . . . [In Cook, our Supreme Court] refined the Bass standard as follows: We believe a better statement of the rule in Bass is that where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Id. at 1131.

This case did not involve voluntary travel or voluntary absence from the home
The Court rejected the Board’s attempt to analogize cases where the claimant had been absent from his mailing address for voluntary travel, e.g., See, e.g., Karmiev v. UCBR (Pa. Cmwlth., No. 1060 C.D. 2016, filed March 24, 2017); Plut v. UCBR (Pa. Cmwlth., No. 2283 C.D. 2007, filed October 14, 2008); Hanin v. UCBR, 377 A.2d 1062 (Pa. Cmwlth. 1977).  The Court agreed with Claimant that his case is in line with the paradigm established in Cook, 671 A.2d 1130, where a nunc pro tunc appeal was allowed because of the appellant’s hospitalization for a serious medical condition. See also B.B. v. Department of Public Welfare, 118 A.3d 482 (Pa. Cmwlth. 2015). The Referee credited Claimant’s testimony in its entirety, including that he was admitted to the Livengrin Inpatient Residential Program during the appeal period and believed, based on prior experience, that there would be no problem with his unemployment application.

No duty to have mail forwarded in every case
The Board asserts that every claimant has a duty to have his mail forwarded when he is absent for any reason and for any duration from the mailing address given to the Department. We reject the Board’s assertion. Forwarding mail is a step undertaken when one leaves home for an extended period of time, not for a vacation or hospitalization.

Breakdown in administrative process – inability to contact UCSC by phone
Claimant’s case is distinguishable from the cases cited by the Board for an additional reason. Claimant testified credibly that he attempted to contact the UC Service Center by phone but always got a busy signal.8 Claimant points out that his appeal period coincided with the height of a funding crisis at the Department of Labor and Industry that resulted in substantial staff reductions beginning in December 2016. Claimant’s credited testimony that he tried unsuccessfully to contact the UC Service Center by phone weighs in favor of granting nunc pro tunc relief since it is evidence that Claimant acted reasonably to learn the status of his application but was unsuccessful due to no fault of his own


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