Friday, February 22, 2019

UC - late appeal - misleading admin. actions

Begovic v. UCBR – Cmwlth. Court – February 19, 2019 – unreported memorandum decision**

Contact by UC authorities subsequent to initial adverse determination were sufficiently misleading as to constitute an administrative breakdown and, thus, allow a late appeal, nunc pro tunc. 

From the opinion –

If an appeal is not filed within 15 days of mailing, the referee and the Board lack jurisdiction to consider the matter, and the initial eligibility determination becomes final. Roman-Hutchinson v. UCBR, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009); United States Postal Service v. UCBR, 620 A.2d 572, 573 (Pa. Cmwlth. 1993). An appeal filed even 1 day after the 15-day appeal period is untimely and must be dismissed. Hessou v. UCBR, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008).

There is an exception, though, and an appeal nunc pro tunc may be allowed “where a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non-negligent circumstances related to an appellant or [her] counsel or a third party.” Russo v. UCBR, 13 A.3d 1000, 1003 (Pa. Cmwlth. 2010). In cases where a claimant is “unintentionally misled by an official who is authorized to act in the premises, the time [for appeal] may also be extended when it is possible to relieve an innocent party of injury consequent on such misleading act.” Flynn v. UCBR, 159 A.2d 579 (Pa. Super. 1960). See also Stana v. UCBR, 791 A.2d 1269, 1271 (Pa. Cmwlth. 2002). Further, “[W]here an administrative body acts negligently, improperly or in a misleading way, an appeal nunc pro tunc may be warranted.” Union Electric Corporation v. Board of Property Assessment, 746 A.2d 581, 584 (Pa. 2000).

In line with Martyna v. UCBR, 692 A.2d 594 (Pa. Cmwlth. 1997), and Waters-Bey v. UCBR,  (Pa. Cmwlth., No. 777 C.D. 2016, filed June 12, 2017) [citing the  court’s Internal Operating Procedures, allowing citation un an unreported opinion for its persuasive value. 210 Pa. Code §69.414(a).], the Court held that the Department’s letter, which erroneously indicated that another letter was forthcoming, coupled with the phone call from the Department representative, which occurred during Claimant’s appeal period and in the course of the wage investigation she sought, but after the Department sent her the Revised Financial Determination, were sufficiently misleading so as to constitute a breakdown in the administrative process. The Department was apparently confused about its own procedures as reflected by 15 the timing and the indication that it would issue a new revised financial determination was false.  

As we said in Martyna, “If [the Department] was mistaken, [Claimant] should not bear the consequences of that administrative confusion.” Martyna, 692 A.2d at 598 [emphasis added]. Thus, we remand for a decision on the merits of Claimant’s appeal from the Revised Financial Determination regarding her wages earned from OPI. Accordingly, we reverse the Board’s April 9, 2018 order and remand for a decision on the merits of the issues Claimant raised on appeal.

**An unreported Commonwealth Court case may not be cited binding precedent but can be cited for its persuasive value.  See 210 Pa. Code § 69.414(b) and Pa. R.A.P.  3716