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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