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DeWitt v. Unemployment Compensation Board of Review

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


July 15, 2010

JACQUELINE DEWITT, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT

The opinion of the court was delivered by: Senior Judge Kelley

Submitted: June 21, 2010

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Before the Court is an application for reconsideration filed by the Unemployment Compensation Board of Review (Board) of an Order of this Court dated March 18, 2010, denying the motion of intervenor, Weis Market, Inc. (Employer) to quash the petition for review filed by Jacqueline DeWitt (Claimant). The issue is whether we can extend the filing deadline set forth in this Court's Internal Operating Procedure (IOP) 211 as a matter of discretion.*fn1

On December 21, 2009 Claimant submitted a number of documents with the caption "appeal" to this Court.*fn2 By letter dated December 22, 2009, this Court, through its chief clerk, sent Claimant a notice that in order to perfect her appeal she was to file a petition for review in accordance with the Pennsylvania Rules of Appellate Procedure. The letter provided her with instructions on how to do so and explained:

The date of December 21, 2009 will be preserved as the date of filing your appeal. This is the date your communication indicating your intention to appeal was filed with this Court. If this date is more than 30 days from the mailing date of the order that you are appealing, your appeal may be dismissed because it is untimely. Unless your perfected petition for review is filed and the filing fee (if any) is paid within 30 days of the date of this notice, the Court will take no further action in this matter.

Application for Reconsideration, Appendix A.

Claimant filed a perfected petition for review on January 25, 2010, which was postmarked January 22, 2010. As the petition for review was not filed within the thirty-day time period listed in the notice, Employer filed a motion to quash the appeal alleging that this Court was without jurisdiction to consider an untimely petition for review.

On March 18, 2010, this Court issued a memorandum and order noting that under IOP 211 when a claimant fails to meet the thirty-day deadline, the chief clerk is to advise the claimant by letter that the Court will take no further action in the matter. As the chief clerk had yet to send the letter, it was determined that the Court could extend the time period pursuant to Pa. R.A.P. 105(b).*fn3 Citing Larocca v. Workmen's Compensation Appeal Board (The Pittsburgh Press), 592 A.2d 757 (Pa. Cmwlth.), petition for allowance of appeal denied, 529 Pa. 659, 604 A.2d 251 (1991), the Court opined that IOP 211 did not violate the thirty-day period for filing an appeal as set forth in Pa R.A.P. 105(b). Therefore, the Court determined that Claimant satisfied the jurisdictional requirement, in the present case, when she filed her original "appeal." As the jurisdictional requirement was satisfied, it was permissible for the Court to expand the period of time set forth in IOP 211 as a matter of its discretion. Accordingly, the motion to quash was denied.

In response, the Board filed an application for reconsideration.*fn4

Employer has filed a letter joining in the application. The Board argues that Larocca merely held that the Court could create an internal rule permitting amendment of a timely filed pro se communication to convert it into a perfected petition for review; it did not, however, grant the Court the authority to extend the time period beyond that allowed by IOP 211. Upon further reflection and review, we agree.

In Larocca, a pro se claimant sent a letter to this Court requesting the necessary forms to file an appeal. Pursuant to IOP 211, the chief clerk sent the requested documents and advised the claimant that she had thirty days to file a proper petition for review. Larocca. The claimant then filed a petition for review within the provided time period. The employer filed a motion to quash alleging that IOP 211 impermissibly extended the period of time in which to file an appeal. Id. The employer argued that this was prohibited by Pa. R.A.P. 105(b). Id.

We determined that while the claimant had not filed a proper petition for review, the timely filing of a communication advising of the intent to appeal was sufficient to toll the appeal period. Id. Further, we noted that Pa. R.A.P. 1503 also allowed amendment, for the purposes of clarification, on improvidently filed appeals. Id. Therefore, we concluded that it was allowable for this Court to extend the time period to perfect the appeal pursuant to IOP 211. Id.

Thus, the jurisdictional requirements of filing a petition for review can be deemed met when a petitioner has provided the Court with notice that he/she intends to appeal. Larocca. IOP 211(a)(2) preserves the filing date "on the condition that the party files a proper petition for review within 30 days of the letter from the chief clerk." 210 Pa. Code § 67.13(a)(2). It then provides that if the party fails to do so "the chief clerk shall advise the party by letter that the court will take no further action in the matter." Id. Thus, our jurisdiction is conditional on the party filing a perfected petition for review within thirty days of the chief clerk's letter. Once this thirty-day time period expires, the date of the receipt of the pro se communication is no longer preserved and our jurisdiction is extinguished.

Here, Claimant's appeal was conditioned on the filing of the perfected petition for review within thirty days of December 21, 2009, i.e., January 20, 2010. Claimant's petition for review was not filed until January 25, 2010 and was not postmarked until January 22, 2010, after the thirty-day appeal period had expired. See Alston v. Unemployment Compensation Board of Review, 967 A.2d 432 (Pa. Cmwlth. 2009). The fact that the chief clerk had yet to send the letter, advising Claimant that the Court will take no further action in the matter, did not extend the time period at its discretion pursuant Pa. R.A.P. 105(b). IOP 211 does not provide a means to further extend the time allotted to appeal. Once the thirty- day period of time lapsed, the date of the receipt of Claimant's pro se communication was no longer preserved and our jurisdiction was relinquished. To conclude otherwise would provide a petitioner/appellant with the means of extension based on nothing more than the swiftness of the chief clerk in mailing an advisory letter.

Accordingly, we grant the application for reconsideration filed by the Board and quash the petition for review filed by Claimant.

ORDER

AND NOW, this 15th day of July, 2010, Respondent's application for reconsideration is GRANTED, the order of this Court dated March 18, 2010 is VACATED, and the petition for review filed by Petitioner is QUASHED.

JAMES R. KELLEY, Senior Judge


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