        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renee Huggins,                          :
                           Petitioner   :
                                        :
            v.                          :   No. 341 C.D. 2016
                                        :   Argued: December 12, 2016
Unemployment Compensation Board         :
of Review                               :
                    Respondent          :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: May 17, 2017

            This late appeal case, argued with Kenneth Greene v. Unemployment
Compensation Board of Review, ___ A.3d ___, (Pa. Cmwlth., No. 2750 C.D.
2015, filed March 10, 2017), similarly questions 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, Renee Huggins (Claimant) 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 she is entitled
to an appeal nunc pro tunc because she based her decision not to appeal on
misleading and incomplete information provided by unemployment compensation
service center representatives (UC representatives), from the Department of Labor
and Industry (Department), who advised her she could not collect UC benefits
while collecting severance pay.2


                                      I. Background
                Claimant testified she worked for Mondelez Global (Employer) as a
rotary operator before being laid off in May 2015 when Employer closed down.
Referee’s Hr’g, Notes of Testimony (N.T.), 11/23/15, at 9-10. Prior to Claimant’s
layoff, Employer arranged a meeting for UC representatives to speak to employees
about issues related to their layoffs.         N.T. at 12.       At the meeting, the UC
representatives stated that severance pay was deductible and advised Claimant that
after she received $19,400 in severance she could begin collecting UC benefits. Id.


                Upon her separation, Claimant applied for UC benefits. Notably,
when asked in Question No. 11 of the Claimant Questionnaire whether her union’s
agreement with Employer providing for a severance payment existed prior to

       1
           Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§821(e).
       2
          Prior to January 1, 2012, severance payments received by an employee based on
separation from employment were not deductible from the employee’s UC benefits. Killian-
McCombie v. Unemployment Comp. Bd. of Review, 62 A.3d 498 (Pa. Cmwlth. 2013). Here,
UC representatives failed to advise Claimant at a pre-separation meeting that the new severance
deduction applied only to severance agreements made after January 1, 2012. Claimant’s
severance agreement preceded that date.




                                              2
January 1, 2012, Claimant answered “no.” See Certified Record (C.R.) at Item #3
(Claimant Questionnaire at #11).
              On June 22, 2015, a UC service center sent Claimant a notice of
determination advising her that her severance pay was deductible under Section
404(d)(1) of the Law, 43 P.S. §804(d)(1).3 This resulted in a revised weekly
benefit rate of $0 for the claim weeks ending 5/23/15 through 8/01/15, and $178
for claim week ending 8/08/15. In short, Claimant was not eligible for her full
weekly benefit amount until the week ending August 15, 2015. C.R. at Item #4.

              The notice of determination indicated a right to appeal the
determination on or before July 7, 2015. C.R. at Item #4. Although Claimant
testified she never received her notice of determination, other employees did
receive their determinations.      N.T. at 6-7.     In fact, Claimant testified at the
November 2015 hearing that she believed the notice of determination was still in
the mail. N.T. at 7. Claimant further stated that none of the people she knew who
received the adverse determinations appealed. Id. Similarly, Claimant testified
she would not have appealed even if she received the determination based on
information provided by the UC representative indicating she could not collect
severance and UC benefits at the same time. N.T. at 14. In particular, Claimant
stated “I didn’t appeal in a timely fashion because I did not know that I was being
done wrong.” N.T. at 18 (emphasis added).


       3
         The notice of determination explained that the amount of the deduction would be
determined by subtracting 43% of Claimant’s three-year annual wage ($19,417) from the total
amount of the severance payment ($31,295.77). Certified Record (C.R.) at Item #4 (Notice of
Determination).




                                            3
               Ultimately, Claimant appealed the notice of determination on
November 3, 2015.         Before a referee, Claimant testified at length regarding her
confusion concerning the severance deduction and her eligibility.                      She also
submitted into evidence referee decisions involving her coworkers. See Referee’s
Hr’g; Claimant’s Ex. C-3 (C.R. at Item #9).4


               Ultimately, the referee in the present case rejected Claimant’s
testimony that she did not receive the notice of determination and dismissed her
appeal as untimely, noting she had no jurisdiction to accept an appeal filed after the
expiration of the statutory appeal period. Ref. Op., 11/23/15, at 2. The referee also
found Claimant was not misled or misinformed as to her appeal rights. Finding of
Fact No. 5.


               On appeal, the Board affirmed. In so doing, it adopted the referee’s
findings and conclusions. As to the information provided by the UC
representatives at the pre-separation meeting, the Board stated:

               A Department representative telling [Claimant] that she
               may not file claims for benefits until her severance pay

       4
         In a case involving Cynthia Jastrzembski, a claimant-employee who filed an untimely
appeal, a referee granted an appeal nunc pro tunc. However, in Jastrzembski, the referee
determined the claimant filed an appeal “shortly after she was informed by a CareerLink
representative that the Determination was incorrect and she had a right to file a late appeal.” See
Claimant’s Ex. C-3; Referee’s Decision/Order (Jastrzembski v. Mondelez Global, LLC), Appeal
No. 15-09-C-D472, filed 10/23/2015, at 2 (emphasis added). See Union Elec. Corp. v. Bd. of
Prop. Assessment, Appeals & Review of Allegheny Cnty., 746 A.2d 581 (Pa. 2000) (nunc pro
tunc appeal allowed where assessment board negligently extended period for landowner’s
appeal). Those are not the facts in this case.




                                                4
              has been fully allocated is no different from a
              determination saying the same thing, and the record
              contains no evidence the claimant was told to not appeal
              the determination.
Board Op., 12/29/15 (emphasis added). Claimant petitions for review.5


                                     II. Discussion
              The parties’ arguments here are exactly the same as those made in
Greene. Further, on appeal Claimant does not contest the referee’s determination,
affirmed by the Board, that Claimant’s testimony does not overcome the
presumption that she received the notice of determination.


              In Greene we held that conduct which misleads a party regarding the
necessity to appeal could be the basis for nunc pro tunc relief. After analyzing the
cases cited by the parties, we observed that necessity-of-appeal type cases involve
statements or actions suggesting that an appeal is not allowed, an appeal could
wait, or further corrective action is unnecessary.


              In addition, in Greene we held that there were no statements
attributable to compensation authorities that address the availability, timing or need
for an appeal.     We concluded that not every misstatement by an apparently
authoritative person will justify a nunc pro tunc appeal; rather, the misinformation
must relate to the availability, timing or need for an appeal.             Therefore, we

       5
          Our review is limited to determining whether the necessary findings of fact were
supported by substantial evidence, whether errors of law were committed, or whether
constitutional rights were violated. Oliver v. Unemployment Comp. Bd. of Review, 5 A.3d 432
(Pa. Cmwlth. 2010) (en banc).




                                            5
concluded that the cases relied upon by the claimant were not controlling. Further,
we rejected the claimant’s attempts to distinguish the cases upon which the Board
relied.


             Because in this case there are no statements attributable to
compensation authorities that are misleading as to the availability, timing, or need
for an appeal, we reach the same conclusions here.


             The Supreme Court’s decision in Union Electric Corp. v. Board of
Property Assessment, Appeals and Review of Allegheny County, 746 A.2d 581
(Pa. 2000), relied upon by Claimant, is consistent with this conclusion. Union
Electric involved the timing of an appeal.        The assessment board improperly
extended the time for the landowners to appeal. Because the board had apparent
authority to do so, the Supreme Court allowed the late appeal. Insofar as Union
Electric involved a misunderstanding relating to the availability, timing or need for
an appeal, its holding does not support relief under the facts here.


             Moreover, as discussed in Pickering v. Unemployment Compensation
Board of Review, 471 A.2d 182 (Pa. Cmwlth. 1984), the UC representatives’
misinterpretation of the Law does not constitute willful or negligent conduct
equivalent to a fraudulent deprivation of Claimant’s appeal rights. Rather, it
constitutes “legal error, not fraud, and it is just such errors which the administrative
process was designed to remedy.” Id. at 184.




                                           6
            Thus, although the UC representatives misinformed Claimant as to her
eligibility to receive UC benefits while receiving severance pay under a pre-2012
severance agreement, their actions constituted legal error, not an administrative
breakdown. The administrative appeal process is designed to remedy such errors.


            In short, the UC representatives did not dissuade Claimant from
appealing a determination that her severance pay was deductible from her UC
benefits. Further, the Department’s notice of determination advised her that if she
disagrees with the determination, she may file an appeal by July 7, 2015. See C.R.
at Item #5 (Notice of Determination). Therefore, the Department did not mislead
Claimant either as to her right to appeal or the necessity for an appeal. However,
Claimant did not appeal until November 3, 2015, after learning some of her
coworkers were receiving both severance pay and UC benefits. Consistent with
our recent reported decision in Greene, we affirm.




                                      ROBERT SIMPSON, Judge




                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Renee Huggins,                        :
                       Petitioner     :
                                      :
           v.                         :   No. 341 C.D. 2016
                                      :
Unemployment Compensation Board       :
of Review                             :
                    Respondent        :



                                    ORDER

           AND NOW, this 17th day of May, 2017, for the reasons stated in the
foregoing opinion, the order of the Unemployment Compensation Board of Review
is AFFIRMED.




                                     ROBERT SIMPSON, Judge
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Renee Huggins,                           :
                    Petitioner           :
                                         :
             v.                          :
                                         :
Unemployment Compensation                :
Board of Review,                         :   No. 341 C.D. 2016
                 Respondent              :   Argued: December 12, 2016



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JOSEPH M. COSGROVE, Judge
             HONORABLE BONNIE LEADBETTER, Senior Judge


OPINION NOT REPORTED

DISSENTING OPINION
BY JUDGE COSGROVE                            FILED: May 17, 2017


             As I did in Greene v. Unemployment Compensation Board of Review,
__A.3d__, (Pa. Cmwlth., No. 2750 C.D. 2015, filed March 10, 2017), 2017 WL
943242, I must dissent in this case as well. As in Greene, the present claimant has
done nothing wrong other than to rely on governmental representatives to provide
true, correct and accurate advice.     When that advice was understood to be
incorrect, she sought relief. Instead of correcting the original error, the majority
doubles down on Greene’s unfortunate analysis and in the process only compounds
a harmful result.
             Greene represents a drastic constriction of nunc pro tunc
jurisprudence, and is so far from the equitable principles at the root of that
jurisprudence, see Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979); see also
Schofield v. Department of Transportation, Bureau of Driver Licensing, 828 A.2d,
510, 512 (Pa. Cmwlth. 2003) as to render it almost meaningless. Nunc pro tunc
relief in this court may become as rare as unicorn sightings, but that does not mean
justice will be done. As this case represents, quite the opposite is true.


             I dissent.




                                        ___________________________
                                        JOSEPH M. COSGROVE, Judge




                                        JMC-2
