J. Downey v. UCBR
298 C.D.2016
| Pa. Commw. Ct. | Nov 23, 2016Background
- Claimant JoAnne Downey was discharged and the UC Service Center mailed a Notice of Determination (11/6/2015) finding her ineligible under 43 P.S. § 802(e).
- The Notice advised a 15-day appeal period ending November 23, 2015; Claimant’s faxed appeal was stamped received on November 24, 2015.
- Claimant testified she had earlier attempted to fax appeals and contacted the Service Center, which twice told her to refax and mail a copy; she produced no fax confirmation or proof of mailing at the referee hearing.
- The Referee found the appeal untimely, that Claimant provided no credible evidence of earlier timely transmission or mailing, and that no fraud, administrative breakdown, or non-negligent third‑party conduct justified nunc pro tunc relief.
- The Board affirmed, declined to admit extra-record documents Claimant submitted on appeal, and the Commonwealth Court affirmed the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Claimant filed a timely appeal within the 15‑day period | Downey: she attempted to fax timely and was in communication with UC; earlier faxes were sent before the deadline | Board: record shows only a fax received 11/24/2015; no proof of earlier transmissions or mailing | Appeal untimely; record lacks evidence of timely filing |
| Whether nunc pro tunc relief should be granted (fraud/admin breakdown/non‑negligent conduct) | Downey: she was misinformed and repeatedly followed UC instructions, so delay was not her negligence | Board: no evidence of fraud, administrative breakdown, or non‑negligent cause; claimant assumed fax risk and failed to mail as advised | Nunc pro tunc relief denied; claimant failed to meet heavy burden to show extraordinary circumstances |
| Whether the Board improperly refused to consider extra‑record documents submitted on appeal | Downey: attempted to provide additional evidence to the Board after the hearing | Board: cannot consider evidence not presented to the Referee | Court: affirmed Board’s refusal; review limited to record before Referee |
| Whether the Referee/Board capriciously disregarded claimant testimony about attempts to file | Downey: testimony established attempts and communications with Service Center | Board: as factfinder, it may credit or discredit testimony absent corroboration | Court: Board reasonably rejected testimony for lack of corroborating evidence |
Key Cases Cited
- Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d 561 (Pa. Cmwlth. 2012) (lack of additional evidence of successful fax defeats timeliness claim)
- Wright v. Unemployment Comp. Bd. of Review, 41 A.3d 58 (Pa. Cmwlth. 2011) (timely fax can be established with corroborating testimony and carrier records)
- Vereb v. Unemployment Comp. Bd. of Review, 676 A.2d 1290 (Pa. Cmwlth. 1996) (15‑day appeal period is mandatory)
- Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678 (Pa. Cmwlth. 2003) (appeal periods are jurisdictional; one‑day late appeals require dismissal)
- Mountain Home Beagle Media v. Unemployment Comp. Bd. of Review, 955 A.2d 484 (Pa. Cmwlth. 2008) (nunc pro tunc available for fraud, administrative breakdown, or non‑negligent conduct)
- Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth. 2008) (claimant bears heavy burden to establish right to untimely appeal)
- Criss v. Wise, 781 A.2d 1156 (Pa. 2001) (nunc pro tunc is equitable relief reserved for extraordinary circumstances)
- Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) (examples of non‑negligent delay supporting nunc pro tunc relief)
- Suber v. Unemployment Comp. Bd. of Review, 126 A.3d 410 (Pa. Cmwlth. 2015) (claimant assumes risk of fax filing; sending to wrong fax number is not non‑negligent conduct)