Barsky v. UCBR – Cmwlth. Court – August 31, 2021 – reported, precedential
Held: UCBR erred in denying nunc pro tunc late appeal, where
- there was no postmark or postage meter mark on envelope
- appeal received one day after last appeal date
So appeal did not satisfy any of the conditions of 34 Pa. Code 101.82(b) regarding filing appeal by mail, even though logical mailing date showed that appeal was mailed before final appeal date. Verch v. UCBR, 676 Al2d 1290, 1291-5 (Pa. Cmwlth. 1996).
But, UCBR capriciously disregarded tracking number evidence that, while insufficient to establish timeliness of appeal under sec. 101.82of UCBR regulations, was “certainly relevant to nunc pro unc relief, under the extraordinary circumstances of the case.” Case remanded for consideration of whether nunc pro tunc relief was warranted.
An appeal nunc pro tunc is only warranted in extraordinary circumstances “involving fraud or some breakdown in the court’s operation,” or where the delay is quotations omitted) (quoting Bass v. Cmwlth., 401 A.2d 1133, 1135 (Pa. 1979)). [W]here 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 [the] appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Id. In reviewing a request for nunc pro tunc relief on non-negligent grounds, “[t]he question of whether there are unique and compelling facts, which establish a non-negligent failure to timely appeal, is a legal conclusion to be drawn from the evidence and is reviewable on appeal.” Harris v. Unemployment Comp. Bd. of Rev., 247 A.3d 1223, 1231 (Pa. Cmwlth. 2021) (quotingV.S. v. DPW, 131 A.3d 523, 527 (Pa. Cmwlth. 2015)). It is well settled that the burden of demonstrating the necessity of nunc pro tunc relief is on the party seeking to file the appeal, and the burden is a heavy one. Blast Intermediate Unit No. 17 v. UCBR., 645 A.2d 447, 449 (Pa. Cmwlth. 1994).
The extraordinary/exceptional circumstances of this case included (1) an appeal filed by mail during the COVID-19 pandemic, during which significant backlogs and errors in USPS’s mailing operations occurred; (2) claimant’s CPA mailing the appeal from home due to an at-risk health condition; and (3) Claimant seeking UC benefits in the first instance as a result of Governor Wolf’s mandated closure of non-essential business. Clearly, the factual setting surrounding Claimant’s application for unemployment benefits and the filing of Claimant’s appeal was anything but ordinary, and it warranted a detailed review of all the evidence of record.
USPS Tracking number - a tracking number is a federally established and reliable means of demonstrating exactly when a piece of mail is sent and received through USPS. . . .The tracking number is clearly a part of the record, with the number being printed under the barcode on the certified mail sticker on the front of the envelope containing Claimant’s appeal. . . . Indeed, in entering the tracking number into the USPS website, this Court was able to discern quickly and easily that the appeal was mailed on June 1, 2020, or earlier. This information, coupled with witness testimony, may have been sufficient to permit Claimant’s appeal nunc pro tunc, but the Board did not engage in such an analysis.
