J.Y. Eom v. UCBR
350 C.D. 2016
| Pa. Commw. Ct. | Jan 31, 2017Background
- Claimant Jee Y. Eom appealed a Service Center Notice of Determination denying unemployment benefits as a voluntary quit without necessitous and compelling reason; the Notice was mailed November 3, 2015.
- The statutory appeal period was 15 days (deadline November 18, 2015); a Petition for Appeal was faxed and received November 20, 2015 (two days late).
- Claimant’s attorney testified at hearing he prepared and mailed an earlier appeal between November 9–13, 2015 before leaving town, but produced no mailing documentation (no postmark, certified mail receipt, or USPS Form 3817).
- Referee dismissed the appeal as untimely; the Board affirmed, discrediting the attorney’s mailing testimony and finding no non-negligent excuse for the late filing.
- Claimant sought nunc pro tunc relief arguing the lateness was due to non-negligent attorney conduct and the appeal was promptly re-filed once the attorney realized the earlier submission had not been received.
- The Commonwealth Court majority affirmed the Board, holding (1) the Board’s credibility determination is binding, and (2) attorney testimony alone (without documentary proof) is legally insufficient to establish non-negligent mailing that would warrant nunc pro tunc relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was timely under 43 P.S. § 821(e) | Attorney mailed the appeal before deadline; therefore timely | No documentary proof of mailing; only faxed appeal received after deadline | Untimely; Board’s credibility finding that no timely mailing was proved upheld |
| Whether nunc pro tunc relief is warranted based on non-negligent attorney conduct | Late filing resulted from non-negligent conduct by attorney who mailed the appeal; re-filed promptly when problem discovered | No evidence of non-negligent conduct; delays in mail are foreseeable and testimony alone insufficient | Denied; claimant did not meet heavy burden to obtain nunc pro tunc relief |
| Whether attorney testimony alone can establish timely mailing per Board regulation (34 Pa. Code § 101.82) | Testimony that mailing occurred should be credited for equitable nunc pro tunc relief | Regulation requires objective proof (postmark, certified receipt, Form 3817); testimony insufficient | Testimony uncredited and, even if credited, is insufficient under precedent to establish timely mailing |
| Appellate review scope over Board credibility determinations | Claimant asks court to overturn Board’s credibility rejection of attorney testimony | Board is ultimate factfinder; appellate court defers to credibility findings supported by the record | Court defers to Board; will not overturn credibility findings absent lack of substantial evidence |
Key Cases Cited
- Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678 (Pa. Cmwlth.) (failure to timely appeal deprives Board of jurisdiction)
- Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194 (Pa. Cmwlth.) (enumerating limited exceptions to untimely-appeal bar)
- Bass v. Commonwealth, 401 A.2d 1133 (Pa.) (nunc pro tunc relief available for non-negligent failure corrected quickly)
- Criss v. Wise, 781 A.2d 1156 (Pa.) (delays in U.S. mail are foreseeable; mailing alone generally insufficient for nunc pro tunc)
- Cook v. Unemployment Comp. Bd. of Review, 671 A.2d 1130 (Pa. Cmwlth.) (nunc pro tunc may be allowed for non-negligent attorney conduct)
- McKnight v. Unemployment Comp. Bd. of Review, 99 A.3d 946 (Pa. Cmwlth.) (testimony alone is not an acceptable substitute for documentary proof of mailing under Board regulation)