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Courier v. Department of Labor and Industry

Commonwealth Court of Pennsylvania

October 23, 2019

Best Courier, Petitioner
v.
Department of Labor and Industry, Office of Unemployment Compensation Tax Services, Respondent

          Submitted: May 6, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, PRESIDENT JUDGE HONORABLE RENÉE COHN JUBELIRER, JUDGE HONORABLE BONNIE BRIGANCE LEADBETTER, SENIOR JUDGE.

          OPINION

          RENÉE COHN JUBELIRER, JUDGE.

         Best Courier petitions this Court for review of the Department of Labor and Industry's (Department) September 27, 2018 Final Order denying Best Courier's Petition for Reassessment after concluding it was untimely filed and Best Courier did not demonstrate that it was entitled to nunc pro tunc relief. On appeal, the sole issue raised by Best Courier is whether the Department erred in concluding Best Courier did not meet its burden of showing it was entitled to nunc pro tunc relief. Because equitable relief in the form of an appeal nunc pro tunc is reserved for extraordinary circumstances, Criss v. Wise, 781 A.2d 1156, 1159 (Pa. 2001), which are not present here, we affirm.

         On June 28, 2016, the Department's Office of Unemployment Compensation Tax Services (OUCTS) issued a Notice of Assessment (Notice) to Best Courier in the amount of $27, 555.39 for unemployment compensation employer and/or employee contributions, interest, and penalties for 2015 and the first quarter of 2016. (Reproduced Record (R.R.) at 21a-32a.) The Notice was mailed to Best Courier at 322 Northshore Drive, Pittsburgh, PA 15212 via first class and certified mail. (Id. at 21a.)

         On July 27, 2016, Best Courier filed a Petition for Reassessment, alleging the individuals identified in the Notice are independent contractors not employees of Best Courier. (Id. at 35a.) In a cover letter accompanying the Petition for Reassessment, Best Courier acknowledged that it only had 15 days to seek reassessment, but claimed the Notice was received by an individual who "was neither an employee nor an agent of Best Courier." (Id. at 34a.) The cover letter further stated that individual "is an attendant of the building that is rented by Best Courier, among other entities" and that the owner of Best Courier "first learned of the Notice . . . today." (Id.)

         By letter dated November 7, 2016, an appeals docket clerk for the Department's Unemployment Compensation Tax Review Office indicated that "a jurisdictional issue . . . ha[d] been identified which must be decided before the merits may be reached" and directed the parties to exchange exhibits, including "those materials related to the mailing and/or receipt of the . . . [N]otice." (Id. at 37a.) The letter noted that the Petition for Reassessment was filed more than 15 days from the Notice. (Id.) The letter continued "[i]n the interest of administrative efficiency and to otherwise avoid an undue delay, the parties should consider and include in their respective distributions information relevant to the timeliness of the Petition for Reassessment, as well as the merits of that appeal." (Id.)

         Best Courier submitted a Declaration from its president, Roy Calabria, Jr. The Declaration stated Mr. Calabria received the Notice on July 27, 2016, and immediately upon receipt, he contacted counsel who assisted with preparing the Petition for Reassessment. (Id. at 41a-42a.) The Declaration also stated:

[a]lthough OUCTS's [Notice] is dated June 28, 2016[, ] and is addressed to Best Courier at 322 North Shore Drive, that address is office space that Best Courier has rented but which is not staffed on a daily basis. Someone other than me or an authorized representative of Best Courier signed for receipt of the [Notice].

(Id. at 41a.)

         A Notice of Hearing was issued on June 13, 2018. (Id. at 295a.) One week later, OUCTS filed a Motion to Dismiss seeking dismissal of the Petition for Reassessment on the ground it was untimely filed and a stay of the appeal on the merits until the Motion to Dismiss was decided. (Id. at 302a-04a.) Best Courier filed a Brief in Response to the Motion to Dismiss, arguing it was entitled to nunc pro tunc relief. (Id. at 310a-15a.) By order dated July 23, 2018, the hearing on the merits was continued pending disposition of the Motion to Dismiss. (Id. at 322a-23a.) The order further noted that the Motion to Dismiss would be deemed denied if not acted upon within 30 days. (Id. at 323a.)

         Although the Motion to Dismiss was not acted upon within that time frame, the Final Order was issued on September 28, 2018, denying the Petition for Reassessment as untimely.[1] In the Final Order, the Department noted that, pursuant to Section 304(b) of the Unemployment Compensation Law[2] (UC Law), a challenge to an assessment must be filed within 15 days and here, the Petition for Reassessment was filed after that time period expired. The Department also noted that Best Courier did not claim the address to which the Notice was sent was incorrect or that it was not received.[3] The Department acknowledged the Declaration submitted by Best Courier's president that the office space is rented and not staffed daily, but found Best Courier "must bear the risk of any failure that may result from its decision not to staff that location daily, and the apparent irregularity this causes in its checking on mailings sent to this address." (Final Order at 8.) The Department further found that Best Courier focused on the certified mailing, but neglected to address the Notice also being mailed via first class mail, which was presumed received. (Id. at 9, 14.)

         As for the certified mailing, the Department found it noteworthy that Best Courier did "not represent or otherwise intimate that the building attendant's acceptance of the mail was inappropriate, atypical, or otherwise unexpected," nor did Best Courier "allege that it informed the management of the rented office space not to sign for mail." (Id. at 8-9.) According to the Department, Best Courier "simply failed to adjust its operations or otherwise make alternate provisions to ensure it could act promptly upon time-sensitive communications." (Id. at 9.) The Department found Best Courier's "internal procedures did not adequately and reasonably provide for, among other things, contingencies when it did not have an officer or other staff member present in [the] office." (Id. at 9 n.11.) To the extent Best Courier "attempt[ed] to distance itself from the 'attendant of the building'" by asserting the attendant was not Best Courier's agent, the Department was not persuaded, noting the building attendant was not "an entirely 'disinterested third party.'" (Id. at 10, 11 n.14.) The Department stated:

[Best Courier] controlled the manner by which it would receive mail. [Best Courier] knew, or should have known, that mailings would be sent to the undisputed address of record, at least some of which could be time-sensitive and/or require recipient acknowledgment (such as the [a]ssessments sent by certified mail in the case at hand). [Best Courier] also knew, or should have known, that having an irregular presence at the office that is its undisputed address of record could cause disruptions in mailings and/or necessitate, in the absence of specified alternate arrangements, others to act on its behalf in regard to mailings to such address (such as the building attendant).

(Id. at 13.) In short, the Department concluded Best Courier's own negligence was the reason for the late filing and, accordingly, Best Courier was not entitled to nunc pro tunc relief. This appeal followed.

         On appeal, [4] Best Courier does not argue that the Notice was mailed to an incorrect address; rather it raises one issue: whether the Department erred in finding Best Courier was not entitled to nunc pro tunc relief. In support of such relief, Best Courier argues that the delay in filing its Petition for Reassessment was brief and due to non-negligent circumstances. Best Courier attributes the delay to renting office space in a common use building and someone other than its agent signing for the Notice. It claims there was no negligence on its part. Best Courier also argues it met the other criteria for nunc pro tunc relief. Namely, Best Courier argues the sworn Declaration shows the Notice was received on July 27, 2016, which is the same day its Petition for Reassessment was filed; therefore, it acted promptly. Further, Best Courier asserts the appeal was filed a short time - just two weeks - after the appeal period ran. Finally, it claims OUCTS would suffer no prejudice in allowing the late filing. Best Courier requests that this Court reverse the Department's Final Order and remand the matter to allow it to proceed on the merits.

         OUCTS responds that Best Courier's negligence is to blame for the late Petition for Reassessment. It argues the Notice was mailed to the last known address, as required, and, per the UC Law, service was completed upon mailing. It further notes that receipt of the first class mailing alone is sufficient to support denial of the Petition for Reassessment because there is no requirement that such notices be sent certified mail. OUCTS notes that Best Courier does not dispute that the address to which the first class and certified mail was sent is correct. It also claims there is a presumption of regularity of administrative acts, such that the Notice is presumed received. OUCTS asserts a petitioner must meet a heavy burden to be entitled to nunc pro tunc relief, and Best Courier has not satisfied that burden here. It points out that Best Courier did not staff its office daily and decided to have its mail sent there anyway, a decision which was solely within its control. Therefore, OUCTS argues Best Courier assumed the risk. Because there is no evidence of non-negligence, OUCTS asks this Court to affirm the Department's Final Order.

         Section 304 of the UC Law sets forth the procedure governing assessments, including the manner of notice and the time period for challenging an assessment. Specifically, Section 304(a)(3) provides that "[t]he department will mail notice of an assessment to the employer's last known address . . ." and "[n]otice of an assessment by mail is complete upon mailing." 43 P.S. § 784(a)(3).[5] Section 304(b) then provides that "[a]ny employer against whom an assessment is made may, within fifteen days after notice thereof, petition the department for a re[]assessment . . . ." 43 P.S. § 784(b) (emphasis added). If an employer does not seek reassessment, the assessment becomes final. 43 P.S. § 784(d). Here, although there is nothing in the record indicating that the Northshore address was the last known address, Best Courier has not alleged that the address is incorrect. Therefore, it is undisputed that the Notice was mailed to Best Courier's correct address via both first class and certified mail. Yet, Best Courier filed its Petition for Reassessment after the 15-day period had run.

         It is well established that the failure to file an appeal within the requisite time period is jurisdictional. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008); Dumberth v. Unemployment Comp. Bd. of Review, 837 A.2d 678, 681 (Pa. Cmwlth. 2003); Aarsand Mgmt., LLC v. Dep't of Labor & Indus., Office of Unemployment Comp. Tax Servs. (Pa. Cmwlth., No. 1726 C.D. 2016, filed Aug. 31, 2017), slip op. at 3.[6] Our Supreme Court has cautioned that "[i]n order to perfect an appeal, parties must strictly adhere to the statutory provisions for filing an appeal." Criss, 781 A.2d at 1159. The deadline for filing an appeal "cannot be extended as a matter of grace or mere indulgence." Bass v. Commonwealth of Pennsylvania, 401 A.2d 1133, 1135 (Pa. 1979). Moreover, "[t]he burden to establish the right to have an untimely appeal considered is a heavy one because the statutory time limit established for appeals is mandatory." Hessou, 942 A.2d at 198.

         Limited circumstances exist in which an untimely appeal may be considered. Id. Nunc pro tunc relief is a form of equitable relief that is available only "in certain extraordinary circumstances." Criss, 781 A.2d at 1159. Allowable exceptions include cases involving fraud, a breakdown in the administrative process, or when there is a "non-negligent failure to file a timely appeal which was corrected within a very short time, during which any prejudice to the other side of the controversy would necessarily be minimal." Bass, 401 A.2d at 1135-36. It is under this third exception - non-negligent conduct - that Best Courier seeks to proceed. Nunc pro tunc relief for non-negligent conduct is generally reserved for only those "unique and compelling cases in which the appellant has clearly established that [the petitioner] attempted to file an appeal, but unforeseeable and unavoidable events precluded [the petitioner] from actually doing so." Criss, 781 A.2d at 1160.

         We agree with the Department that Best Courier has not met the heavy burden of showing it is entitled to nunc pro tunc relief. Best Courier acknowledges in its Declaration that its office is not staffed on a daily basis; yet it did nothing to ensure mail was received in a timely manner. We have refused to allow nunc pro tunc relief under similar circumstances in the past. In Ho v. Unemployment Compensation Board of Review, 525 A.2d 874 (Pa. Cmwlth. 1987), the claimant applied for unemployment compensation benefits but was denied. That decision was mailed to the claimant, along with a notice that she had 15 days to appeal the decision. The claimant missed the deadline and requested nunc pro tunc relief, alleging she was out of the country caring for her sick mother. The claimant admitted that her husband informed her of receipt of the letter, but not its contents because he did not understand English. We affirmed the Board's order dismissing her appeal, finding the claimant was responsible for missing the deadline.

         We have consistently found petitioners negligent by not making other arrangements for their mail while they were away. For instance, in Douglas v. Unemployment Compensation Board of Review (Pa. Cmwlth., No. 1903 C.D. 2013, filed July 16, 2014), [7] the claimant was out of town caring for her mother, and did not receive the determination denying her request for a waiver of overpayment until after the appeal period expired. Noting the claimant presented no evidence that she attempted to monitor her mail while away, we held she was not entitled to nunc pro tunc relief. Douglas, slip op. at 6. We reached a similar conclusion in Vanker v. Department of Transportation, Bureau of Driver Licensing (Pa. Cmwlth., No. 2340 C.D. 2009, filed Dec. 22, 2010). There, the appellant, a truck driver, did not receive notice of suspension of his operating privilege because he was out of state for work. He admitted he did not make arrangements for anyone to check his mail in his absence. The trial court denied the appeal, and we affirmed, holding that the failure of appellant to have someone check his mail did not constitute non-negligent circumstances. Vanker, slip op. at 5; see also King v. Workers' Comp. Appeal Bd. (Pep Boys) (Pa. Cmwlth., No. 1796 C.D. 2007, filed Feb. 25, 2008), slip op. at 4 (holding claimant's "failure to make arrangements for retrieval or forwarding of his mail was negligent"); Plut v. Unemployment Comp. Bd. of Review (Pa. Cmwlth., No. 2283 C.D. 2007, filed Oct. 14, 2008), slip op. at 7-8 (holding failure to have mail forwarded or have someone collect mail from address of record does not justify a late appeal).

         Here, like in the cases cited above, Best Courier presented no evidence that it made any arrangements to monitor its mail despite knowing that its office was not staffed on a daily basis. The Notice was mailed on June 28, 2016. According to the Declaration filed by Best Courier's principal, the Notice was not received by him until July 27, 2016. Therefore, Best Courier's office was not staffed for at least a month, or else Best Courier would have received the Notice earlier. Given our precedent, in which individuals have been found negligent in similar situations, we cannot conclude that Best Courier not monitoring its mail for this lengthy of a period of time was not negligent. Best Courier assumed the risk that time-sensitive matters would be received during these periods of absence.

         Nor are we persuaded by Best Courier's argument that its principal or agent had to be the one to sign for the certified letter containing the Notice, not the building attendant, who was allegedly not its agent. First, this argument does not consider that the Notice was also sent via first class mail to the undisputed proper address, and there is no evidence or suggestion that it was returned. Second, the Department did not appear to credit Best Courier's contention that the building attendant was not its agent. In the Final Order, the Department noted that Best Courier did "not represent or otherwise intimate that the building attendant's acceptance of the mail was inappropriate, atypical, or otherwise unexpected," (Final Order at 8), which, notably, Best Courier still does not contend.

         In Milford Township Board of Supervisors v. Department of Environmental Resources, 644 A.2d 217 (Pa. Cmwlth. 1994), an order directing supervisors to file an amended sewage facilities plan was mailed to the township via certified mail, which was signed for by the township's earned income officer, but not turned over to the supervisors until more than a week later. The appeal period expired before the supervisors could appeal. The supervisors argued that the earned income officer did not have authority to receive service and that the order should have been mailed via certified mail with restricted delivery. We disagreed with both premises, holding "[c]onstitutionally adequate notice of administrative action is notice which is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections," which was satisfied there. Id. at 219. We also reiterated that "personal receipt of the notice is not required when the notice was mailed to the party's last known address." Id. Because the order was mailed to the correct address, we concluded that notice was constitutionally adequate regardless of whether the earned income officer had authority to receive the notice on the supervisors' behalf. Id. Here, it is not disputed that the Notice was mailed to the correct address. That the certified mail was signed for by someone other than Best Courier is of no consequence since there is no requirement that the Notice be mailed via certified mail. In addition, the Notice was also mailed via first class mail, which would not have required a signature.

         If Best Courier wanted to ensure timely receipt of its mail, it could have taken steps to do so when its office was not staffed. It did not do so. In accordance with our precedent, we cannot conclude that Best ...


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