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Edwards v. Unemployment Compensation Board of Review

July 29, 2010

VICTOR K. EDWARDS, PETITIONER
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



The opinion of the court was delivered by: President Judge Leadbetter

SUBMITTED: June 21, 2010

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

OPINION

Before this court is a motion by the Unemployment Compensation Board of Review (Board) to strike an Amended Petition for Review and the Petitioner's cross-motion to allow the amendment. At issue is whether a timely filed Petition for Review may be amended where both the motion to amend and the amendment are filed after the time for filing a Petition for Review has expired.

Petitioner, Victor K. Edwards, was employed by Securitas Security Services (Employer) as a security guard until February 22, 2009. Petitioner is a resident alien.*fn1 Employer terminated Petitioner's employment because he failed to provide Employer with a valid green card or other documentation permitting him to work legally.

Petitioner filed for unemployment compensation benefits, which were denied by the Job Center. The Job Center determined that Petitioner was eligible for benefits under Section 402(e) of the Unemployment Compensation Law*fn2 (Law), 43 P.S. § 802(e), but was ineligible for benefits under Section 401(d)(1), 43 P.S. § 801(d)(1), of the Law because he lacked a valid green card. Section 401(d)(1) requires that Petitioner demonstrate that he is able and available for suitable employment. Petitioner appealed the Job Center Determination.

A referee held a hearing at which Employer's Human Resources Manager, Cornelia Haymond, and Petitioner testified. Haymond testified that she requested that Petitioner provide Employer with a valid authorization to work and that Petitioner was terminated for failing to do so. Petitioner testified that he had valid authorization to work pending resolution of his application to remove conditions on residence and was awaiting receipt of a new green card. Petitioner also testified that he could get his Sierra Leone passport stamped as an alternative, but his passport had expired. The referee requested that Petitioner provide some form of written authorization to work. Petitioner was unable to produce a written authorization document from the government, but produced a letter from an immigration attorney, dated June 12, 2009, which opined that, "While Mr. Edwards' waiver application is pending, then, he is still considered a permanent resident of the United States and has the rights of permanent residents to live and work in the United States." (Certified Record at Item #11). The referee issued a decision denying Petitioner benefits determining that Petitioner was ineligible for benefits under Section 401(d)(1) because he did not have valid authorization to work in the United States. Petitioner appealed, pro se, to the Unemployment Compensation Board of Review (Board). The Board affirmed the referee's decision.

Thereafter, Petitioner filed a timely pro se letter dated September 28, 2009, requesting appellate review in this court. On September 29, 2009, this court directed Petitioner to file a proper petition for review within 30 days, pursuant to 210 Pa. Code § 67.13. Claimant timely filed a petition for review on October 27, 2009. On December 18, 2009, Petitioner obtained counsel. On January 17, 2010, without his counsel's knowledge, Petitioner filed a pro se appeal brief. On February 8, 2010, counsel filed an amended petition for review. The Chief Clerk notified counsel that Petitioner had filed a pro se brief.*fn3 On February 17, the Board filed a motion to strike Petitioner's amended petition for review. On February 18, 2010, counsel filed an application for leave to file an amended petition for review, to strike Petitioner's pro se brief and to stay the briefing schedule pending disposition of the application. On March 25, 2010, this court issued an order stating that Petitioner's application to file an amended petition for review would be treated as a response to the Board's motion to strike the amended petition for review. The court also ordered that Petitioner's pro se brief be stricken. The briefing on the merits of Petitioner's appeal is stayed pending resolution of the motion to strike the amended petition for review.

The Board asserts that Appellate Rule 105*fn4 expressly forbids the enlargement of time for the filing of a petition for review with the only exception being the procedure for perfection of a pro se communication pursuant to 210 Pa. Code § 67.13. The Board argues that because Petitioner was given the opportunity to perfect his petition for review once already, Petitioner is prohibited by Appellate Rule 105 from filing an amended petition for review. Petitioner contends that the amended petition for review does not raise any new issues, but rather clarifies the objections and issues raised before the referee, the Board, and in the pro se petition for review, and thus, the amended petition for review does not give rise to a jurisdictional defect or require a nunc pro tunc appeal.

Petitioner's first attempt to appeal to this court by letter was plainly inadequate. However, pursuant to Commonwealth Court Internal Operating Procedure (IOP) § 211, 210 Pa. Code. § 67.13, Petitioner was given an opportunity to remedy the defects in his petition. IOP § 211 provides in relevant part:

(a) Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall time-stamp the writing with the date of receipt. The chief clerk shall advise the party by letter:

(1) As to the procedures necessary to perfect the appeal.

(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.

210 Pa. Code ยง 67.13. Petitioner filed a timely and adequate petition for review in response to the Chief Clerk's letter. Thus, the date of Petitioner's original letter was preserved as the filing date and our jurisdiction over this appeal was perfected. In addition, the issues raised in the pro se petition for review were preserved for appellate review. ...


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