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Greene v. Unemployment Compensation Board of Review

Commonwealth Court of Pennsylvania

March 10, 2017

Kenneth Greene, Petitioner
Unemployment Compensation Board of Review, Respondent

          Argued: December 12, 2016



          ROBERT SIMPSON, Judge

         In this 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.

         In 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).[1] 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.[2] For the reasons that follow, we affirm.

         I. Background

         Claimant 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.

         Despite 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).[3]

         On June 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).[4] 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.

         The 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.

         Nevertheless, 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. at 8.

         The 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.

         Ultimately, 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 (emphasis added).

         On appeal, the Board affirmed. In so doing, it adopted the referee's findings and conclusions. Claimant petitions for review.[5]

         II. Discussion

         A. Argument

         Claimant 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.

         B. Claimant's Argument

         Claimant 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.

         More 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.

         In 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.

         Claimant 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.

         In 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, we reasoned:

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 ...

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