D.A. Gallagher v. UCBR
D.A. Gallagher v. UCBR - 2742 and 2751-2758 C.D. 2015
| Pa. Commw. Ct. | Mar 17, 2017Background
- Claimant Debra A. Gallagher filed multiple UC claims (2007–2014) while employed by Aramark; employer-submitted wage records prompted overpayment notices.
- In July–August 2014 the Service Center sent multiple Advance Notices and over 20 Notices of Determination (fault and non-fault overpayments and penalties), with statutory 15-day appeal deadlines in July–September 2014.
- Claimant did not appeal within 15 days; she filed appeals more than a year later on September 14, 2015.
- At an October 16, 2015 hearing Claimant testified pro se that caring for an autistic son and confusion about prior adjudications delayed her appeals; she also said she received only some notices.
- The Referee and Board found the determinations were mailed to Claimant’s correct address, receipt was presumed, and Claimant failed to show fraud, administrative breakdown, or non-negligent conduct warranting nunc pro tunc relief.
- This Court affirmed, holding untimely appeals must be dismissed absent extraordinary circumstances justifying nunc pro tunc relief; Claimant failed to meet that burden and she also raised an administrative-breakdown argument not presented to the Board.
Issues
| Issue | Gallagher's Argument | Unemployment Compensation Board's Argument | Held |
|---|---|---|---|
| Whether late appeals can be accepted nunc pro tunc | Delay caused by caregiving burden, confusion from many notices, and belief matters were previously adjudicated justify nunc pro tunc relief | Notices put Claimant on clear notice; no evidence of administrative fraud, misrepresentation, or breakdown; appeals untimely | Denied — Claimant failed to prove extraordinary circumstances or non-negligent conduct required for nunc pro tunc relief; appeals dismissed as untimely |
| Whether multiple/late mailed notices created an administrative breakdown excusing lateness | The volume and delayed mailing of notices caused confusion and an administrative breakdown | No evidence Board or Service Center misled Claimant; argument not raised before Board (procedural waiver) | Denied — issue waived for appellate review and, on the merits, Board found no administrative breakdown |
| Whether Claimant actually received the Notices | Claimant asserted she received only some notices and was confused | Service Center records show mailing to correct address; notices not returned undeliverable; presumption of receipt controls | Board credited presumption of receipt; Claimant failed to rebut it credibly |
| Whether appellate review can consider a 2013 Referee decision cited by Gallagher | It would support her belief issues were previously adjudicated | That decision was not in the certified record | Not considered — appellate courts may only consider the certified record |
Key Cases Cited
- Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603 (Pa. Cmwlth. 2011) (procedural bar to raising issues for first time on appeal)
- Hessou v. Unemployment Compensation Board of Review, 942 A.2d 194 (Pa. Cmwlth. 2008) (statutory 15-day appeal rule; even one-day late appeal is untimely)
- United States Postal Service v. Unemployment Compensation Board of Review, 620 A.2d 572 (Pa. Cmwlth. 1993) (failure to file within 15 days without adequate excuse mandates dismissal)
- Union Electric Corp. v. Board of Property Assessment, Appeals and Review of Allegheny County, 746 A.2d 581 (Pa. 2000) (nunc pro tunc relief limited to extraordinary circumstances, including negligent or misleading administrative conduct)
- Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130 (Pa. 1996) (nunc pro tunc relief considerations: non-negligent claimant conduct, short delay once aware, due diligence)
- UPMC Health System v. Unemployment Compensation Board of Review, 852 A.2d 467 (Pa. Cmwlth. 2004) (discussing administrative delay cases and contours of nunc pro tunc relief)
- Finney v. Commonwealth, 472 A.2d 752 (Pa. Cmwlth. 1984) (claimant’s misunderstanding of appeal procedure does not excuse untimely filing)
- B.K. v. Department of Public Welfare, 36 A.3d 649 (Pa. Cmwlth. 2012) (appellate courts limited to certified record)
- Kirkwood v. Unemployment Compensation Board of Review, 525 A.2d 841 (Pa. Cmwlth. 1987) (scope of review: constitutional violations, errors of law, and substantial-evidence support for findings)
- Stanton v. Department of Transportation, Bureau of Driver Licensing, 623 A.2d 925 (Pa. Cmwlth. 1993) (denial of nunc pro tunc relief when delay not excused)