          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amos S. Hyman,                            :
                    Petitioner            :
                                          :
             v.                           : No. 358 C.D. 2016
                                          : Submitted: October 7, 2016
Unemployment Compensation                 :
Board of Review,                          :
                 Respondent               :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President 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 Unemployment Compensation Board of Review (Board) which affirmed the
decision of an unemployment compensation referee (Referee) finding his appeal
untimely under Section 501(e) of the Unemployment Compensation Law (Law).1
Finding no error in the Board’s decision, 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…)
                                               I.
                                              A.
              Claimant was employed full-time by Kensington Management
Services (Kensington) as a Therapeutic Staff Support Worker when he was notified
that there was no other work available in April 2015. Kensington then informed
Claimant sometime in 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, although 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
Independent Contractor Agreement that provided that 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 such 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 matter. Roman-Hutchinson v.
Unemployment Compensation Board of Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009).




                                               2
with clients. Upon separation from the Company in June 2015,2 Claimant filed for
unemployment 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 Center) mailed
Claimant a Notice of Determination denying him benefits. In that notice, Claimant
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 mailing
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 separate 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 Claimant 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 dismissed Claimant’s appeal as
untimely.


              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 states that Claimant is “still on
assignment.” (Record (R.) Item No. 3.)




                                              3
               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 [sic]
               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 at 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 first 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 with regard to the issue of his nonappearance at
the previous hearing, Claimant testified that 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 in 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…)

                                                  4
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. He 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 addressed.
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 independent 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 with [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 appeal after the expiration of the appeal period. Id. (citing Mihelic v.
Unemployment Compensation Board of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979)).




                                               5
                Mentioning numerous times his unfamiliarity with unemployment
compensation 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 not 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 of 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
                understanding 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…)

                                                 6
further explained that he did not think that the Company “had anything to do with
this issue period. . . . 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 file 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 not to be filed against [the Company].” (R. Item No.
14, at 8.) Claimant later acknowledged that he did not think 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 office 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 but 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 to 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 discussed with you
               in Philadelphia. . . .

(R. Item No. 14, at 9-10.)




                                               7
                                             ***

              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 been
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 determining 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. 2010).



                                              8
appeals based on the information he had and, as a result, the 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). There is no evidence in the record that the wording of the Notice of
Determination misled Claimant to the extent that a reasonable 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 the Board properly denied a nunc pro tunc
appeal, the Board’s order dismissing Claimant’s appeal as untimely is affirmed.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amos S. Hyman,                    :
                   Petitioner     :
                                  :
            v.                    : No. 358 C.D. 2016
                                  :
Unemployment Compensation         :
Board of Review,                  :
                 Respondent       :




                                ORDER


            AND NOW, this 31st 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
