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.
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