Argued: December 12, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JOSEPH M.
COSGROVE, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior
late appeal case we are asked whether conduct constituting an
administrative breakdown must involve the right to or
necessity for filing an appeal, or whether the
"breakdown" conduct may apply more broadly to other
types of misinformation.
particular, Kenneth Greene (Claimant), now represented by
counsel, petitions for review of an order of the Unemployment
Compensation Board of Review (Board) that adopted a
referee's decision dismissing Claimant's appeal as
untimely under Section 501(e) of the Unemployment
Compensation Law (Law). Claimant asserts he is entitled to an
appeal nunc pro tunc because he based his decision
not to appeal on misleading information provided by
unemployment compensation service center representatives (UC
representatives), from the Department of Labor and Industry
(Department), who advised him he could not collect
unemployment compensation (UC) benefits while also collecting
severance pay. For the reasons that follow, we affirm.
testified he worked for Mondelez Global (Employer) as a
material handler before being laid off in May 2015.
Referee's Hr'g, Notes of Testimony (N.T.), 10/19/15,
at 4-5. Well before the layoff, Claimant learned of
Employer's plan to shut down. N.T. at 5. In January
2014, Employer arranged for UC representatives to
speak to employees at a town hall meeting about issues
related to their layoffs. Id. at 5-6. The UC
representatives discussed severance pay. N.T. at 6.
the information received in January 2014 from the UC
representatives, Claimant made an initial UC claim in
December 2014. Certified Record (C.R.), at Item #1 (Claim
Record). Moreover, although he was recalled to work for some
time, he re-opened his claim in May 2015.
Id. When asked in Question No. 10 of the Claimant
Questionnaire whether his union's agreement with Employer
providing for a severance payment existed prior to January 1,
2012, Claimant answered "no." See C.R. at
Item #3 (Claimant Questionnaire at #10).
23, 2015, a UC service center sent Claimant a notice of
determination advising him that his severance pay was
deductible under Section 404(d)(1) of the Law, 43 P.S.
§804(d)(1). This resulted in a revised weekly benefit
rate of $0 for the claim weeks ending 5/15/15 through
9/12/15, and $0 for claim week ending 9/19/15. In short,
Claimant was not eligible for his full weekly benefit amount
until the week ending September 26, 2015. C.R. at Item #4.
notice of determination indicated a right to appeal the
determination on or before July 8, 2015. C.R. at Item #4.
Claimant testified he received the notice and was aware of
the appeal deadline. N.T. at 7. However, Claimant testified,
based on the information received from the UC representatives
in January 2014, he believed he could not collect UC benefits
while receiving severance pay. Id.
on September 25, 2015, Claimant filed an appeal of the notice
of determination after being made aware that the severance
deduction did not apply to him because the severance
provision of his contract existed prior to January 2012. N.T.
Department afforded Claimant a referee's hearing. As
noted above, Claimant testified that he and his coworkers
relied on the 2014 information provided by the UC
representatives, which indicated that Employer's
employees could not draw unemployment while receiving
severance. N.T. at 7-10. In particular, Claimant testified
that based on the 2014 information provided by the UC
representatives, he did not question the June 2015 notice of
determination. N.T. at 8. Claimant only appealed after he
learned that other employees were collecting both severance
and UC benefits. N.T. at 12.
the referee dismissed Claimant's petition as untimely,
noting she had no jurisdiction to accept an appeal filed
after the expiration of the statutory appeal period, absent
limited exceptions not applicable there. Ref. Op., 10/21/15,
at 2. The referee found that "[t]he record does not
indicate that the claimant was misinformed or misled
regarding his right to appeal." Id., Finding of
Fact (F.F.) No. 7. The referee also found that "[t]he
record does not indicate that the filing of the late appeal
was caused by fraud or its equivalent by the
administrative authorities, by a breakdown in the appellate
system, or by non-negligent conduct." F.F. No. 8
appeal, the Board affirmed. In so doing, it adopted the
referee's findings and conclusions. Claimant petitions
contends the Board erred in dismissing his appeal as untimely
where UC representatives advised Claimant at a town hall
meeting that he could not collect UC benefits while
collecting severance pay.
contends his appeal should be reinstated because an
administrative breakdown caused the untimeliness of his
appeal. Citing Union Electric Corporation v. Board of
Property Assessment, Appeals & Review of Allegheny
County, 746 A.2d 581 (Pa. 2000), Claimant contends the
UC representatives, as official representatives of the
Department, provided Claimant with misleading information
about his eligibility for UC benefits. Claimant reasonably
relied on this information because the UC representatives
were individuals of authority. Consequently, when Claimant
received the notice of determination explaining the severance
deduction, he had no reason to believe it contained an error
necessitating an appeal.
specifically, Claimant asserts that our Supreme Court in
Union Electric addressed the definition of a
breakdown in the court's operations. Thereafter, the
Court determined that a nunc pro tunc appeal may be
granted when an "administrative body acts negligently,
improperly or in a misleading way." Union
Electric, 746 A.2d at 584.
Union Electric, a county board of assessment issued
an order extending the deadline to file tax assessment
appeals. However, the board did not have authority to extend
the deadline. Nonetheless, an appeal was filed after the
board extended the deadline. Given those circumstances, the
Supreme Court reasoned that the board's negligent action
in extending the deadline constituted a breakdown in the
trial court's operations such that the appellants should
be allowed to appeal nunc pro tunc. See Union
Electric, 746 A.2d at 584. In allowing the appeals, the
Court noted, despite the lack of actual authority, the board
was cloaked with apparent authority because it was the
reviewing body, and that the appellants reasonably relied on
this appearance of authority.
also cites Stana v. Unemployment Compensation Board of
Review, 791 A.2d 1269 (Pa. Cmwlth. 2012). In
Stana, the claimant received an October 2000 notice
that she qualified for a maximum of 16 weeks of UC benefits
and that she had until November 8, 2000 to appeal the notice.
Believing the maximum number of weeks was too low, the
claimant contacted a UC representative. As a result of that
contact, the claimant felt that the problem was settled and
no further action on her part was needed. However, when in
January 2001 the claimant received another notice stating she
had only four weeks of benefits left, she appealed the
October 2000 notice of determination.
dismissing the claimant's appeal, the referee found that
the claimant was not misinformed nor in any way misled
regarding her right of appeal. Without making any additional
findings, the Board affirmed. The claimant petitioned for
review. In vacating the Board's order in Stana,
Under the Law, failure to file an appeal within fifteen days
ordinarily mandates dismissal of the appeal unless there is
some adequate excuse for the late filing. However, a showing
of fraud or breakdown in the administrative process may
justify an appeal nunc pro tunc. Negligence on the
part of an administrative official may be deemed the
equivalent of fraud. Furthermore, 'where a person is
unintentionally misled by an officer who is authorized to act
in the ...