Basics of Unemployment Litigation – How to Appeal a Decision or Determination

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August 27, 2013


General Process:

Appeal Rights from Service Center Determination to Referee’s Hearing

An appeal must be filed within fifteen (15) days from the date of the determination. See Section 501(e), 43 P.S. § 821 (e). Note: If the fifteenth day falls on a Saturday, Sunday, or legal holiday, the deadline is extended to the next business day. See 1 Pa. Code § 31.12.

How Appeals May Be Filed

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  1. By Mail - Under 34 Pa. Code §101.82(b)(1), the filing date of an appeal by mail will be determined by the date of the postmark on the envelope in which it was received, a USPS Form 3817 (Certificate of Mailing), or a USPS certified mail receipt. Otherwise, the date of a postage meter mark on the envelope will be the filing date. If there is no postmark or postage meter mark on the envelope, then the date that it was received by the Service Center will control.
  2. By Facsimile – Under 34 Pa. Code §101.82(b)(3), the filing date of an appeal sent by fax will be the receipt date printed by the Service Center or Career Link office fax machine. If that date is not legible, then the filing date will be the date of transmission printed by the sender’s fax machine. If there is no legible date of transmission, the filing date will be the date recorded by the Service Center or Career Link office when it receives the appeal. Must be received by 11:59 p.m. on the last day of the appeal period.
  3. By E-mail – According to 34 Pa. Code §101.82(b)(4), an appeal may be sent by e-mail to [email protected] An e-mail appeal is considered filed on the date recorded by the Department’s e-mail system. The claimant is responsible for any delays if the e-mail is not sent in the proper format, or if there is an interruption in the electronic communication. Information submitted by e-mail is also not secure. See McLean v. UCBR, 908 A.2d 956 (Pa. Cmwlth 2006).
  4. By Common Carrier – According to 34 Pa. Code §101.82 9b)(2), the use of Fed-Ex or UPS is permitted to deliver appeals. The filing date is the date shown by the carrier records as the delivery date. If there is no record, then the filing date will be the date received by the Service Center or Career Link office.
  5. In Person – Appeals may be delivered to a Career Link office, and then it will be forwarded to the appropriate Service Center. See 34 Pa. Code § 101.82(b)(5).

The Referee’s Hearing

  1. Parties Should Be Present – Generally, only time for the parties to offer testimony and evidence absent an order for a remand hearing by the Board or Commonwealth Court and this does not occur often.
  2. Parties Have the Right To Counsel – If a party refuses to waive his or her right to counsel and they have none and have put on the record that they wish to have counsel, it may be error for the Referee to proceed without granting that party time to acquire counsel on his or her behalf. See Staub v. UCBR, 90 Pa. Cmwlth. 94, 494 A.2d 65 (1985).
  3. Referee is limited to issues either ruled upon by the Service Center or those that the parties agree may be considered by the Referee. See 34 Pa. Code §101.87. Issues are often listed on the Notice of Hearing.
  4. Requesting a Continuance

     - A continuance will be granted only for proper cause or that the parties received less than seven (7) days notice for in-person hearings or less than fourteen (14) days notice for telephonic hearings. See Skowronek v. UCBR, 921 A.2d 555 (Pa. Cmwlth. 2007).

     - Whether to grant or refuse a continuance is in the Referee‟s discretion. See Steadwell v. UCBR, 76 Pa. Cmwlth. 439, 463 A.2d 1298 (1983).

     - Continuances should be made in a timely manner. See Instructions on Notice of Hearings for requesting continuances and follow them.

  5. Due Process- The parties must be afforded the opportunity to produce evidence and testimony, present argument, and have rebuttal. The Referee shall advise the parties of their right to legal counsel, to offer witnesses, to cross-examine adverse witnesses. See 34 Pa. Code §101.21(a).
  6. Telephone Hearings – See 34 Pa. Code §101.127-101.133
  7. Walker Rule – Hearsay evidence if admitted without objection will be given its natural probative effect and may support a finding of fact if supported by competent evidence in the record. See Walker v. UCBR, 27 Pa. Cmwlth. 522, 367 A.2d 366 (1976).
  8. Uniform Business Records As Evidence Act, Section 6108 (b) of the Judicial Code, 42 Pa. C.S.A. §6108(b). Hearsay is admissible. However, a document prepared for the purpose of the Referee‟s hearing is not within the business record exception.
  9. Waiver – A party must raise an issue at the earliest possible time, usually at the Referee’s hearing, or the issue will be deemed waived. See Dehus v. UCBR, 118 Pa. Cmwlth 344, 545 A.2d 434 (1988).
  10. Request for Reopening – If a request for reopening is received before the Referee issues his or her decision, the Referee must rule upon the request. If a request for reopening is received or postmarked within fifteen (15) days after the Referee’s decision is mailed, the request then will be ruled upon by the UC Board of Review. See 34 Pa. Code §101.24. This section provides for the reopening of a hearing when a party who did not appear at a scheduled Referees hearing submits a written request for reopening of the hearing, with reasons showing “proper cause” for the requested reopening. The opposing party must be given an opportunity to object.

Further Appeal to the Board of Review

  1. Must file appeal within fifteen (15) days from the date of the decision of the Referee. See 43 P.S. §822. Follow instructions on Referee Decision.
  2. At the time of filing the appeal, the person filing the appeal should also request a copy of the transcript and permission to file a brief.
  3. Request for Remand Hearing – Remand hearings are in the discretion of the Board. If the Board determines that a remand hearing is necessary, it will remand the case back to the Referee for the purpose of scheduling a hearing. See 34 Pa. Code §101.104 (d).
  4. Referee’s Findings Not Binding On Board – The Board may reverse the Referee without the taking of any new evidence or testimony.
  5. Requesting Reconsideration of a Board Decision – Within fifteen (15) days after the issuance of a decision by the Board, a party may request the Board to reconsider its decision. A party may request to submit new and/or additional evidence or oral argument. Oral argument is not generally granted. The additional evidence must have been unavailable at the time of the initial Referee’s hearing. NOTE: Applications for reconsideration DO NOT toll the 30 day appeal period to the Commonwealth Court. See Pa. R.A.P. 1701(b)(3).

Further Appeal to the Commonwealth and Supreme Court

  1. Filing of a Petition For Review – A Petition For Review of a Board Decision must be filed with the Prothonotary of the Court within thirty (30) days after the mailing date of the decision. See Pa. R.A.P. 1512.
  2. Scope of Review – Substantial Evidence Standard – findings of fact must be supported by substantial evidence of record. “Substantial evidence is relevant evidence that a reasonable mind might consider adequate to support a  conclusion.” See Popoleo v. UCBR, 777 A.2d 1252, 1255 (Pa. Cmwlth. 2001)
  3. Credibility Determinations are for the Referee and the Board, not the courts, unless the Referee and/or Board capriciously disregard competent evidence of record. “Capricious Disregard” standard of review. See Treon v. UCBR, 499 Pa. 455, 453 A.2d 960 (1982).

Effect of UC Decision on Other Claims

Because the testimony is sworn testimony presented at a Referee’s hearing, the testimony may be beneficial and serve as evidence for other actions such as Title VII, the ADA, PHRA, etc.

Author: LISA JO FANELLI-GREER, ESQUIRE

Ms. Fanelli-Greer is a sole practitioner and the owner of Law Office of Lisa
Jo Fanelli-Greer, P.C., which she established in 2002. Ms. Fanelli-Greer
concentrates her practice in the areas of employment law and employment
discrimination law, including but not limited to, claims based upon age, sex, race,
color, religion, disability, housing, sexual harassment, FMLA, ADA,
unemployment compensation, wage and hour issues, civil service appeals,
licensure appeals, representation before the PHRC and EEOC, Federal EEO
claims, other administrative agency appeals, both state and federal, and civil trial
and appellate litigation in both state and federal courts.

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