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November 25, 1997


Appealed From No. 94-A-0003-1. State Agency, Department of Labor & Industry.

Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Charles A. Lord, Senior Judge. Opinion BY Judge Flaherty.

The opinion of the court was delivered by: Flaherty


FILED: November 25, 1997

Think Big, Inc. petitions for review from an order of the Deputy Secretary for Administration of the Department of Labor and Industry (Department) which affirmed the decision of the Bureau of Employer Tax Operations (BETO) denying Employer's nunc pro tunc appeal of its unemployment compensation contribution rate assigned to it for the calendar year 1993. We affirm.

On March 2, 1993, BETO notified Think Big of its 1993 contribution rate. The contribution rate notice was mailed to 16250 Stagg Street, Van Nuys, California 91406, Think Big's last known post office address. The notice provided ninety days from the mailing date for an appeal of the rate.

On May 23, 1993, Jack A. Rounick of Conshohocken, Pennsylvania purchased all of the shares of Think Big. Rounick did not furnish BETO with a change of address for unemployment compensation mailing purposes.

At the time of the stock transfer, the former owner did not disclose to Rounick that $19.86 in unemployment compensation tax was past due for the year 1992, or that Think Big's 1993 tax rate was a delinquency rate. The payroll for the former owner was handled by an outside agency, ADP, who, according to the previous owner, failed to pay the amount past due. In addition, no notice of the delinquency rate was forwarded to ADP.

Rounick hired a new controller and, upon discovery of a delinquency rate being imposed by BETO, filed an appeal on August 25, 1993, maintaining that the previous owner failed to pay the $19.85 owed and that all notices regarding the delinquency were sent to the previous owner's address. BETO denied Think Big's appeal as untimely. Rounick appealed to the Deputy Secretary of Administration for the Department, who conducted a hearing and, on March 24, 1997, denied the appeal as untimely. This appeal followed wherein the sole issue is whether the Department erred in failing to grant Think Big's appeal nunc pro tunc.

Our review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether the Department committed an error of law, or whether petitioner's constitutional rights have been violated. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Pursuant to Section 301(e)(2) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 781(e)(2), an employer has ninety days from the date of the Department's mailing of the employer's rate of contribution to appeal the determination. Specifically, Section 301(e)(2) provides:

The department shall promptly notify each employer of his rate of contribution for the calendar year . . . . The determination of the department of the employer's rate of contribution shall become conclusive and binding upon the employer, unless within ninety (90) days after the mailing of notice thereof to the employer's last known post office address the employer files an application for review, setting forth his reasons therefor . . . .

In this case, BETO notified Think Big of its 1993 contribution rate on March 2, 1993. The notice was sent to the last known address on file with BETO. Pursuant to Section 301(e)(2), the last date on which Think Big could have filed a timely appeal of its 1993 rate was May 31, 1993, which is ninety days after the March 2, 1993 mailing. Think Big's appeal, however, was not filed until August 25, 1993.

Nonetheless, Think Big maintains that, in accordance with Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 671 A.2d 1130 (1996), it should be permitted an appeal nunc pro tunc. In Cook, the Supreme Court permitted an applicant for unemployment compensation to appeal nunc pro tunc from an adverse determination. In that case, Cook was notified that he had until May 8, 1992, to appeal the denial of benefits to the referee. Cook scheduled an appointment with an attorney for May 5, 1992. However, on May 3, 1992, he collapsed and was taken to a hospital where he remained in intensive care for four days and then was transferred to ...

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