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
