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Park v. Unemployment Compensation Board of Review12/4/2002
determination. To the contrary, Claimant testified that Mr. Suchanec informed him that he was eligible to collect $442.00 per week. Upon further questioning from the referee, Claimant indicated that after his release from jail, he only stayed at Mr. Suchanec's residence "at times" and that he was always "moving around." (Record at Item No. 7).
Approximately five days after the hearing, the referee issued a decision dismissing Claimant's appeal as untimely. The referee noted that the notice of determination was sent to Claimant's last known address and was not returned. The referee further noted that Claimant was not misinformed nor in any way misled regarding his appeal rights. Citing to Section 501(e) of the UC Law, 43 P.S. §821(e), the referee concluded that he had no jurisdiction to allow an appeal filed after the expiration of the statutory appeal period. Hence, the referee dismissed Claimant's appeal. Claimant then filed an appeal with the Board, but the Board simply affirmed the decision of the referee. Claimant now appeals to this Court.
On appeal, Claimant argues that the Board erred as a matter of law in affirming the decision of the referee. More specifically, Claimant argues that the negligent acts of a third party who was not part of the litigation process, Mr. Suchanec, should not prohibit him from proceeding with his appeal nunc pro tunc. We disagree.
As noted above, Section 501(e) of the UC Law mandates that the failure of a party to file an appeal from a notice of determination within fifteen days after said notice was mailed to that party's "last known post office address" renders the determination "final." 43 P.S. §821(e). Our Supreme Court has held that this fifteen-day time limit is "mandatory and subject to strict application." Lin v. Unemployment Compensation Board of Review, 558 Pa. 94, 97, 735 A.2d 697, 699 (1999). In such situations, the referee and the Board lack jurisdiction to consider the matter. Id.
Nevertheless, there are exceptions whereby an appeal is allowed to proceed nunc pro tunc. Specifically, " n appeal nunc pro tunc may be allowed when a delay in filing the appeal is caused by extraordinary circumstances involving fraud or some breakdown in the court's operation through a default of its officers" or in situations involving "the non-negligent conduct of the appellant's attorney or his staff." Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 383-4, 671 A.2d 1130, 1131 (1996) (citations omitted). However, the party seeking to proceed nunc pro tunc bears a heavy burden and is required to prove more than mere hardship. Staten v. Unemployment Compensation Board of Review, 488 A.2d 1207 (Pa. Cmwlth. 1985).
In this case, Claimant fails to allege any fraud or breakdown in the court's operation or any non-negligent conduct of his attorney or his staff. Instead, Claimant alleges that his failure to file a timely appeal was the result of the negligent conduct of a third party, Mr. Suchanec, his power of attorney, who failed to advise him of the job center's notice of determination. However, Claimant neglects the fact that his own conduct was negligent. Claimant was released from the Cumberland County Prison on January 30, 2002. At the time, Claimant was essentially residing with Mr. Suchanec at the Elizabethtown address. Indeed, Claimant used this address when filing his claim with his local job center.
At some point thereafter, Claimant moved back to his parents' house. At no point in time did Claimant ever contact the local job center to advise them of his change of address. Nor, by Claimant's own admission at the referee's hearing, did Claimant ever pick up his mail at Mr. Suchanec's residence
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