Carney v. Unemployment Comp. Bd. of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael F. Carney, :

Petitioner :

:

v. : No. 623 C.D. 2017

: Submitted: November 3, 2017

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: January 19, 2018

Michael F. Carney (Claimant), representing himself, petitions for

review from an order of the Unemployment Compensation Board of Review

(Board). The Board affirmed a referee’s decision dismissing Claimant’s appeal from

a determination of a local service unit of the Department of Labor and Industry

(Department). The Board found Claimant’s appeal was untimely under Section

501(e) of the Unemployment Compensation Law1 (Law). Claimant argues his

untimeliness should be excused because he did not see the appeal deadline on the

notice of determination when he first read it, and he was excusably distracted

because he recently became a father and started his own business. Upon review, we

affirm.

1

Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.

§821(e).

I. Background

On November 10, 2016, the Department issued a notice of

determination disqualifying Claimant from unemployment compensation (UC)

benefits, finding a fault overpayment, and imposing penalties. Claimant does not

dispute that he received the notice of determination.

The determination stated in multiple places that Claimant’s final day to

appeal the determination to the Board was November 28, 2016. However, Claimant

did not mail his appeal until December 1, 2016.

A referee conducted a hearing limited to the issue of timeliness of

Claimant’s appeal. Claimant testified at the hearing. He explained he failed to see

the appeal deadline on the determination when he first read it. He also stated he

recently became a father and was in the process of starting a business during the

appeal period. The referee dismissed Claimant’s appeal as untimely under Section

501(e) of the Law.

Claimant appealed the dismissal to the Board. Although sympathetic,

the Board found Claimant’s explanation for his late appeal did not meet the criteria

for an exception to the 15-day appeal period imposed by Section 501(e).

Consequently, the Board determined it lacked jurisdiction to entertain the merits of

the case.

Claimant then filed a petition for review in this Court.

2

II. Issue

Claimant argues the Board erred in refusing to excuse the untimeliness

of his appeal from the Department’s determination. He contends he offered a

reasonable explanation for his lateness.

III. Discussion

On appeal,2 Claimant offers the same explanation he presented to the

referee and the Board, i.e., he failed to note the appeal deadline, and he was

distracted by the birth of his child and the demands of starting a business. Both the

referee and the Board found this explanation insufficient to provide an exception to

the appeal deadline. We agree.

Failure to file a timely appeal as required by Section 501(e) of the Law

is a jurisdictional defect. Russo v. Unemployment Comp. Bd. of Review, 13 A.3d

1000 (Pa. Cmwlth. 2010). The time limit for a statutory appeal is mandatory; it may

not be extended as a matter of grace or indulgence. Id. To justify an exception to

the appeal deadline, Claimant must demonstrate that his delay resulted from

extraordinary circumstances involving fraud, a breakdown in the administrative

process, or non-negligent circumstances relating to Claimant himself. See id. This

is an extremely heavy burden. Blast Intermediate Unit No. 17 v. Unemployment

Comp. Bd. of Review, 645 A.2d 447 (Pa. Cmwlth. 1994); Reed v. Unemployment

Comp. Bd. of Review, 406 A.2d 852 (Pa. Cmwlth. 1979).

2

Our review is limited to determining whether the necessary findings of fact were

supported by substantial evidence, whether errors of law were committed, or whether

constitutional rights were violated. Johns v. Unemployment Comp. Bd. of Review, 87 A.3d 1006

(Pa. Cmwlth. 2014).

3

Claimant does not allege any fraud or breakdown in the administrative

process. Rather, he contends his personal circumstances made his lateness

excusable. We construe this contention as arguing non-negligent circumstances.

Unfortunately, Claimant’s argument is without merit.

A claimant’s failure to notice the appeal deadline in a UC determination

does not constitute a non-negligent circumstance justifying an untimely appeal.

Reed; Delaney v. Unemployment Comp. Bd. of Review, 368 A.2d 1351 (Pa.

Cmwlth. 1977). Thus, Claimant’s explanation that he failed to notice the appeal

deadline in the determination he received from the Department is legally insufficient

to excuse his failure to file a timely appeal.

The pressure of life events is likewise insufficient to excuse an untimely

appeal. This Court consistently rejects such excuses. See, e.g., Constantini v.

Unemployment Comp. Bd. of Review 173 A.3d 838 (Pa. Cmwlth. 2017), (claimant

dealing with several ongoing legal issues, repairing and securing home computer

network after a malware virus attack, recovering data information lost from wireless

devices due to the virus, and medical emergency appointments during the time

period prior to the appeal deadline); Maloy v. Unemployment Comp. Bd. of Review

(Pa. Cmwlth., No. 1009 C.D. 2015, filed April 13, 2016), 2016 Pa. Commw. Unpub.

LEXIS 271 (unreported) (claimant dealing with brother’s death, moving, and caring

for daughter and sick mother); Burgher v. Unemployment Comp. Bd. of Review (Pa.

Cmwlth., No. 1929 C.D. 2014, filed July 7, 2015), 2015 Pa. Commw. Unpub. LEXIS

461 (unreported) (claimant dealing with anxiety and stress from layoff); Rabe v.

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 1785 C.D. 2013, filed

4

February 24, 2014), 2014 Pa. Commw. Unpub. LEXIS 115 (unreported) (claimant

dealing with financial stress and multiple pending court cases); Menges v.

Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2230 C.D. 2009, filed April

22, 2010), 2010 Pa. Commw. Unpub. LEXIS 254 (unreported) (claimant dealing

with a death in the family and lingering effects of a medical condition). We cite

these decisions as persuasive. See 210 Pa. Code §69.414(a).

Therefore, we conclude Claimant’s asserted stress and distraction from

the birth of a child and starting a business legally insufficient to excuse his untimely

appeal.

IV. Conclusion

Based on the foregoing, we affirm the Board’s dismissal of Claimant’s

appeal.

ROBERT SIMPSON, Judge

5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael F. Carney, :

Petitioner :

:

v. : No. 623 C.D. 2017

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 19th day of January, 2018, the order of the

Unemployment Compensation Board of Review is AFFIRMED.

ROBERT SIMPSON, Judge