IN THE COMMONWEALTH COURT OF PENNSYLVANIA William E. Bondinell, : Petitioner : : v. : No. 2292 C.D. 2013 : SUBMITTED: July 3, 2014 Unemployment Compensation : Board of Review, : Respondent : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: September 10, 2014 Claimant William E. Bondinell, pro se, petitions for review of the order of the Unemployment Compensation Board of Review (Board) that dismissed his appeal as untimely pursuant to Section 502 of the Unemployment Compensation Law (Law), 1 43 P.S. 822. Section 502 of the Law provides that an appeal from the referee s decision must be made within 15 days after the date of such decision. We affirm. 1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
The facts as found by the Board are as follows. 2 Claimant filed an application for unemployment compensation benefits after accepting an early retirement package from Teva Pharmaceuticals USA (Employer). The Department of Labor and Industry denied benefits pursuant to Section 402(b) of the Law, 43 P.S. 802(b), and Claimant timely appealed. The referee affirmed and Claimant received a copy of that decision in the mail as well as a notice advising the parties that a valid appeal had to be filed within 15 days from receipt of the decision. Claimant s appeal needed to be filed on or before April 4, 2012 in order to be timely, but Claimant s former counsel suggested that Claimant not file an appeal. Subsequently, Claimant filed a late appeal on July 23, 2013, alleging that a change in the law qualified him for benefits in light of the Supreme Court of Pennsylvania s decision in Diehl v. Unemployment Compensation Board of Review, 57 A.3d 1209 (Pa. 2012). After a remand hearing on timeliness, the Board dismissed the appeal, finding that there is no evidence that the claimant was misinformed or misled by the unemployment compensation authorities regarding his right or necessity to appeal. Board s Finding of Fact No. 12. Claimant s appeal to this Court followed. The time allotted to file an appeal is a jurisdictional matter; a law created by the legislature that is mandatory. The court cannot extend the time within which an appeal can be filed. Sofronski v. Civil Serv. Comm n, City of Philadelphia, 695 A.2d 921 (Pa. Cmwlth. 1997). The only appeal which may be filed beyond the limitations required by the Law is an appeal nunc pro tunc. The 2 The Board remanded the matter to a referee to make a record as to timeliness. As the ultimate finder of fact, it is within the Board s purview to resolve all conflicts in evidence and to determine witness credibility and evidentiary weight. Ductmate Indus., Inc. v. Unemployment Comp. Bd. of Review, 949 A.2d 338, 342 (Pa. Cmwlth. 2008). 2
party seeking a late appeal, in this case Claimant, has a heavy burden to justify the delay. Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). In that regard, it is well established that [a] nunc pro tunc appeal may be allowed where extraordinary circumstances involving fraud or some breakdown in the administrative process caused the delay in filing, or where nonnegligent circumstances related to the appellant, his or her counsel or a third party caused the delay. McClean v. Unemployment Comp. Bd. of Review, 908 A.2d 956, 959 (Pa. Cmwlth. 2006) (citations omitted). Where non-negligent circumstances are at issue, an appellant must establish that non-negligent conduct beyond his control caused the delay. Hessou, 942 A.2d at 198 [citing Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979) (emphasis added)]. Further, we note that [t]he exception for allowance of an appeal nunc pro tunc in non-negligent circumstances is meant to apply only in unique and compelling cases in which the appellant has clearly established that she attempted to file an appeal, but unforeseeable and unavoidable events precluded her from actually doing so. Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001). Finally, the appellant must have filed the notice of appeal shortly after the expiration date. Id. at 1159. We turn now to Claimant s arguments. Here, Claimant provides no reason for his untimeliness except that the Supreme Court had not yet decided Diehl, no one informed Claimant that Diehl was currently in the appeal process, and no one held his appeal in abeyance pending resolution of that case. While we understand Claimant s frustration, there was nothing in the referee s decision to mislead Claimant that he could not or should not appeal. Hessou, 942 A.2d at 198-99. Further, Claimant waited over a year to file an appeal, six months after Diehl was decided. This Court has long 3
held that the effect of a recent decision on the case at hand is insufficient grounds for a nunc pro tunc appeal. Cameron v. Unemployment Comp. Bd. of Review, 430 A.2d 396, 399 (Pa. Cmwlth. 1981). Claimant was represented by counsel and, based on counsel s advice, made the decision not to pursue an appeal. Relying on the advice of his then-counsel, the current state of the law, and the possibility that the further expenditure of resources would be futile does not constitute grounds for an appeal nunc pro tunc. Claimant next argues that courts have created a discovery exception to statutes of limitations and that the circumstances before us are similar, providing sufficient reason to extend his time to appeal. Petitioner s Brief at 12. The discovery rule exception provides that the statute of limitations for actually commencing a lawsuit will not begin to run until a plaintiff knows or reasonably should know that he has been injured and that the injury was caused by another s conduct. Coleman v. Wyeth Pharm., Inc., 6 A.3d 502, 510 (Pa. Super. 2010). While this exception is obviously inapplicable here, Claimant asserts that the remedial nature of the Law necessitates a longer period in which to file a claim. We must reject Claimant s argument. The purpose of the appeal process is to ensure a swift and just decision for the parties involved based on a review of the facts and legal issues at hand. It is for the legislative bodies to decide the timeframe necessary in which to appeal and it is not the role of the courts to change those rules. Sofronski, 695 A.2d 921. At all events, to extend the timeliness of the appeal process to the length Claimant is requesting would only further the problem he states that he wants to avoid: a clogging of the administrative and court systems. Petitioner s Reply Brief at 4. The Board correctly concluded that an appeal filed more than a year past the 4
deadline, and seven months after the change in the law upon which he relies, was untimely. Clearly, Claimant did not file the notice shortly after the deadline or even shortly after Diehl was decided. Accordingly, we affirm the Board s dismissal of Claimant s untimely appeal. BONNIE BRIGANCE LEADBETTER, Judge 5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA William E. Bondinell, : Petitioner : : v. : No. 2292 C.D. 2013 : Unemployment Compensation : Board of Review, : Respondent : O R D E R AND NOW, this 10th day of September, 2014, the order of the Unemployment Compensation Board of Review is hereby AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge