IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Amos S. Hyman, :

Petitioner :

:

v. : No. 358 C.D. 20 1 6 : Submitted: Octo ber 7 , 20 1 6 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Preside nt Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE PELLEGRINI FILED: October 31, 2016

Amos S. Hyman (Claimant) petitions pro se for review of an order of

the Un employment Compensation Board of Review (Board) which affirmed the

decision of an unemployment compensation referee (Referee) finding hi s appeal

untimely under Section 501(e) of the Unemployment Compensation Law (Law)

. 1

Finding no error in the Board’s dec ision, we affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 821(e)

. Section 501(e) of the Law provides:

Unless the claimant or last employer or base

- year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen (Footnote continued on next page...)2 I.

A.

Claimant was employed full

- time by Kensington Management

Services (Kensington) as a Therapeu tic Staff Support Worker when he was notified

that there was no other work available in April 2015. Kensington then informed

Claimant some time i n May 2015 that he could resume his work, but Claimant

voluntarily left Kensington because he had already secured work performing

therapeutic support for children with behavioral needs with Staffing Plus

(Company), a healthcare staffing firm , althoug h Claimant did file for

unemployment compensation benefits that same month for the time he was

unemployed which is the subject of a different appeal.

When he was hired by the Company, Claimant executed an

I ndependent C ontractor A greement that provided th at he was an “independent

contractor

. ” Claimant was allowed to accept or decline any client opportunities

and was allowed to negotiate his own hours and other working conditions directly

(continued...)

calendar days after such notice was delivered to him personally, or was mailed to his last known post office address, and applies for a hearing, such determination of the department, with respect to the particular facts set forth in su ch notice, shall be final and compensation shall be paid or denied in accordance therewith.

(Emphasis added). If an appeal is not filed within 15 days of mailing, the determination becomes final and the Board is without jurisdiction to consider the matte r. Roman

- Hutchinson v. Unemployment Compensation Board of Review , 972 A.2d 1286, 1288 n. 1 (Pa. Cmwlth. 2009).3

with clients. Upon separation from the Company in June 2015, 2 Claim ant filed for

unem ployment compensation benefits.

Finding that Section 402(h) of the Law , 43 P.S. § 802(h), precludes

Claimant from being eligible for benefits because he is self

- employed, the

Lancaster Unemployment Compensation Service Center (Service C enter) mailed

Claimant a Notice of Determination denying him benefits

. In that notice , Cl aimant

was also notified that July 14, 2015

, was the last day to appeal the Service Center’s

determination. The notice was mailed to Claimant at his last known maili ng

address and there was no evidence indicating that the notice was returned as

undeliverable by the post office. Claimant emailed his appeal on August 21, 2015

, explaining that his appeal was filed late because he “was not aware of the fact that

two sepa rate appeals had to be filed.” (R. Item No. 5

, at 3.) A hearing was set to

determine the timeliness of his appeal.

Despite being notified of the date, time and place of the hearing on the

timeliness of his appeal, Claimant failed to appear. Because Cl aimant did not

appeal the Notice of Determination by July 14, 2015

, and there was no evidence to

justify a nunc pro tunc appeal, the Referee dismisse d Claimant’s appeal as

unti mely

.

Claimant subsequently appealed to the Board, stating:

2 On the Notice of Application Request for Separation and Wage Information, under “Reason for Separation or Partial Unemployment

, ” the Company s tates that Claimant is “still on assignment.” ( Record ( R. ) Item No. 3.)4 Appeal filed late. WAS NOT AWARE OF THE FACT THAT TWO SEPARATE APPEALS HAD TO BE
FILED. Note that an appeal was filed with Kensington Management. I attended the hearing in philadelphia pa [sic] on 8

- 13

- 2015. I WON THAT APPEAL . WAS NOT MADE AWARE OF THE FACT THAT AN [si c] SEPARATE APPEAL HAD TO BE FILED WITH STAFFING PLUS. I WANT TO FILE NOW. LATE DUE TO LACK OF KNOWLEDGE REGARDING FILING PROCEDURES.

(R. Item No. 10.)

The Board remanded to the Referee to hold another evidentiary

hearing on Claimant’s reason for his nonappearance a t the previous hearing as well

as to receive testimony and evidence on the timelines of Claimant’s appeal. The

Board noted in its Hearing Order that if it were to find that Claimant did not have

proper cause for his nonappearance at the fi rst hearing, the additional testimony

and evidence on the issue of timeliness as well as on the merits may not be

considered by the Board.

B.

Before the Referee, 3 w ith regard to the issue of his nonappearance at

the previous hearing, Claimant testified t hat his address on the hearing notice for

3 Claimant also testified that he signed an Independent Contractor Agreement with the Company and that although a recruiter would assign him his work, he was free to accept or reject the assignments. He stated that the Company paid him an hourly rate of $14 and that he did not have the ability to negotiate his rate, but that taxes were not removed when he received payment. He also stated that the Company provided him with training i n order for him to perform his duties, but that he had to pay for the training. He testified that he paid for his liability insurance, which was offered by the Company through a payroll deduction. Claimant reasoned that he was (Footnote continued on next page...)5

the first hearing was listed correctly, but that he did not remember receiving the

notice. However, he stated that he was not aware of any issues with his mail

around the time he would have received the notice. H e testified that he did not

appear at the hearing because he did not know that there was a hearing. 4

As to the timeliness issue, Claimant stated that his address on the

Service Center’s notice of determination was accurate and that he received the

notice , later changing his testimony to suggest that he was unsure of whether he

received the notice. Claimant testified that he attended a hearing in Philadelphia

for the claim relating to his separation from Kensington and he thought that both

the Kensington claim and the one relating to the Company would be a ddressed.

However, only the Kensington claim was addressed at that hearing so he was under

the impression that that was his only claim.

(continued...)

being misclassified as an i ndependent contractor for unemployment compensation purposes and explained that he signed the Independent Contractor Agreement because “that had nothing to do with me as far as working was concerned. That was part of the procedures involved with working w ith [the Company].” (R. Item No. 14, at 15.)

4 Merely claiming that a notice was not received, however, is not a sufficient reason for extending the time for appeal. ATM Corporation of America v. Unemployment Compensation Board of Review , 892 A.2d 859, 864 (Pa. Cmwlth. 2006). Where a notice is mailed to a

claimant ’ s last known mailing address and is not returned by the postal service authorities as undeliverable, the claimant is presumed to have received the notice and is barred from attempting to appea l after the expiration of the appeal period. Id. (citing Mihelic v. Unemployment Compensation Board of Review , 399 A.2d 825, 827 (Pa. Cmwlth. 1979)).6 Mentioning numerous times his unfamiliarity with unemployment

com pensation procedure, Claimant explained that he only learned after his

Kensington hearing that he had an outstanding claim relating to his relationship

with the Company for which he would have to file a separate appeal

. 5 Claimant

5 Claimant testified:

C ...I was told that I had

— I knew that I had that particular issue

was

— I had won that appeal, okay and when I called to start to receive benefits they said oh by the way you have another issue

here. Okay you have an issue with [Company] and I’m saying [Company], what do they have to do with this? I said I work for [Company] so I’m no t trying to file claims against [Company]. I’m trying to get the money and see what it was I was out of work for a period of time during the summer, okay, after school was out.

So those

— this was the issue I was trying to file the claim with that period o f time. So when they said that you could not receive benefits because you have another piece here to go to deal with, with [Company] I said well I wasn’t aware of that. I said when I went to Philadelphia I was assuming that whatever issues were

relative to my claim were discussed at that time and therefore, once I got the letter stating that the appeal

— I had won the appeal that I

was set. So they said well no you cannot do this. What you’re going to have to do now is file a separate claim...

R Appeal.

C File a separate appeal on the issue with [Company]. I said...

R Which is what...

C ...oh I [sic] my God.

R ...you did on August 21st.

C Right and I’m like oh my God and so I said well is

— by that

time I knew

— I didn’t

— now I’m trying

—

now I’m kind of

unders tanding what’s going on that there was [sic] two separate

issues here. So I said well is it too late for me to file? They said (Footnote continued on next page...)7

further explained that he did not think that the Company “had anything to do with

this issue perio d.

. . . All of my wages were accrued from working through

[ Kensington ] .” (R. Item No. 14, at 7.) He acknowledged that he stopped working

at Kensington in April 2015 and did not f ile a claim until May 2015, “because

that ’s when I was no longer working. ” (R. Item No. 14, at 7.) He testified,

however, that “the claim was no t to be filed against [ the Company]

. ” (R. Item No.

14, at 8.) Claimant later acknowledged th at he did not th ink the Company was

involved in the hearing for Kensington:

R Hold on. Hold on. Hold on because I think you’re reading too much into my question so I want to make sure I’m talking about from a layman’s standpoint you get a paper from our Referee’s offi ce that says your name on it and under the Employer it says Kensington, whoever the Employer was, but [the Company] isn’t anywhere on it. If you thought that hearing was going to address everything and you don’t see [the Company] on it, is there a reason why you then would have assumed that you were going to get into something about it when you see your name, you see Kensington’s name bu t you see [the Company] nowhere. . . .

(continued...)

well what I would do is explain to whoever you ’re filing with that you didn’t understand the procedures and therefore attempt t o file they said [sic] because you can’t explain it to us because we’re

not

— we didn’t make the decision, the Board makes decisions so what you got to do is go and make that filing now at this time as soon as possible to make certain that you can try to get that situation reviewed because they said the bottom line is you had two separate issues and that should have been dis cussed with you in Philadelphia. . . .

(R. Item No. 14, at 9

- 10.)8 ***

C [I didn’t think the Company] had anything to do with this...

(R. Item No. 14, at 11).

Finding that Claimant did not have proper cause for his

nonappearance at the first hearing, the Board did not consider the additional

testimony and evidence adduced at the second hearing. It affirmed the Referee ’s

dismissal of the appeal as untimely because it found no credible evidence to

support Claimant’s assertion that he was not in receipt of the hearing notice that

was mailed to his correct address of record

. This appeal followed. 6

II.

Initially

, we note that Claimant has not raised as an issue that the

Board erred in finding that he received proper notice that his claim had bee n
denied or that he did not have proper cause for his nonappearance at the first

hearing. In his appeal, Claimant only contends that he had no knowledge that he

would have to file separate timely appeals for each of his two claims because the

procedure was not adequately outlined by the documents provided by

unemployment officials

. He claims that he took reasonable efforts to file timely

6 Our scope of review of the Board ’ s decision is limited to determini ng whether an error of law was committed, whether constitutional rights were violated, or whether the necessary findings of fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of Review , 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 201 0).9

appeals based on the i nformation he h ad and, as a result, t he Board erred in not

granting his appeal nunc pro tunc

.

A nunc pro tunc appeal may be granted in extraordinary

circumstances involving fraud, administrative breakdown or non

- negligent conduct

either by a third party or by a claimant. Mountain Home Beagle Media v.

Unemployment Compensation Board of Review , 955 A.2d 484, 487 (Pa. Cmwlth.

2008). T here is no evidence in the record that the wording of the N otice of

D etermination misled Claimant to the extent that a reaso nable person could believe

that one appeal for unemployment benefits acted as an appeal for a subsequent

denial of unemployment benefits from a different employer

, which would be

tantamount to an administrative breakdown to justify a nunc pro tunc appeal

.

Accordingly

, because th e Board properly denied a nunc pro tunc

appeal

, the Board’s order dismissing Claimant’s appeal as untimely i s affirmed.

__________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSY LVANIA

Amos S. Hyman, :

Petitioner :

:

v. : No. 358 C.D. 2016

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 31 st day of October , 2016, the order of the

Unemployment Compensation Board of Review dated February 5, 2016, at No. B

586246 , is affirmed.

__________________________________ DAN PELLEGRINI, Senior Judge