RULES AND REGULATIONS
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CH. 101]
Appeals from Determinations of Department
[33 Pa.B. 4674]
The Department of Labor and Industry (Department), Unemployment Compensation Board of Review (Board), adopts amendments to Chapter 101 (relating to general requirements) to read as set forth in Annex A.
In response to comments received, the Department made changes to the proposed rulemaking published at 32 Pa.B. 4720 (September 28, 2002).
The final-form rulemaking was adopted under the authority in section 3(d) of the Unemployment Compensation Law (act) (43 P. S. § 763(d)), which provides that the Board has the duty to adopt, amend or rescind rules of procedure. The Department has the power to make rules and regulations for carrying into effect the laws regulating the labor of persons within this Commonwealth under section 2205 of The Administrative Code of 1929 (code) (71 P. S. § 565). Additionally, section 1(a) of the act (43 P. S. § 761(a)) gives the Department authority to adopt, amend and rescind rules and regulations that it deems necessary or suitable.
The Board is an administrative board that exercises its appellate duties independently of the Department. See section 3(d) of the act and sections 202 and 503 of the code (71 P. S. §§ 62 and 183). A party in an unemployment compensation proceeding may appeal a determination of the Department to a referee or a referee decision to the Board within 15 days. See sections 501(e) and 502 of the act (43 P. S. §§ 821(e) and 822). A party may file an appeal on a prescribed appeal form or through a written communication and notice advising the Department that the aggrieved party requests review of the decision. Existing § 101.82(c) (relating to time for filing appeal from determination of Department) recognizes only actual delivery to the Department, the Board or an official United States postmark as the filing date. The Department has accepted appeals or notice of appeals through various other methods, including fax transmission and common carrier. The Department frequently receives appeals bearing a private postage meter mark.
Commonwealth Court recognized that the Board may interpret its regulations to allow delivery of appeals or notices of appeal by fax transmission under § 101.82. However, the date of filing is the date that the faxed document is actually received by the Department or the Board. George v. Unemployment Compensation Board of Review, 767 A.2d 1124 (Pa. Cmwlth. 2001). This judicial interpretation could result in the rejection of an appeal that was faxed within the prescribed 15-day period but that was, nonetheless, received after 15 days elapsed. Commonwealth Court has urged the Board to reconsider the effect of its regulations on parties who use common carriers and parties who do not place an official United States postmark on the envelope accompanying the appeal. Copyright, Inc. v. Unemployment Compensation Board of Review, 739 A.2d 219 (Pa. Cmwlth. 1999); UGI Utilities, Inc. v. Unemployment Compensation Board of Review, 776 A.2d 344 (Pa. Cmwlth. 2001).
The Board solicited input from a cross-section of stakeholder organizations during the drafting process. It contacted the following individuals and groups for their suggestions: Community Legal Services, Inc. (CLS), John Stember, Esq., Widener University School of Law, Pennsylvania Chamber of Business and Industry, Pennsylvania Bar Association, Pennsylvania AFL-CIO, Employer's Unity, Inc., The Frick Company, University of Pennsylvania and Duquesne University.
The Board received stakeholder comments to the proposed rulemaking from Employer's Unity, Inc., the CLS, Pennsylvania AFL-CIO and the Duquesne University Unemployment Compensation Clinic (UCC).
The CLS requested that the Board consider specifying that a United States Postal Service certified mail receipt could be used as another means of establishing timely mailing of an appeal. The final-form rulemaking will contain a provision that a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt can be used to establish timely mailing of an appeal.
The CLS and the UCC expressed concern about the use of postage meter marks for determining timeliness, where there is no official United States Postal Service postmark. The Board considered the stakeholders' concerns regarding the potential for fraud. However, the interest in providing parties with additional methods for filing appeals outweighs the potential for fraud. Expeditious resolution of unemployment compensation claims and development of an appeal system that assists claimants and businesses that often are not represented is important. Additionally, there are laws and rules of professional conduct that would deter and punish fraudulent conduct.
The UCC also stated that the regulations do not address cases where a party alleges that an appeal was filed and the Department has no record of receiving the appeal. The regulations are designed to determine the timeliness of appeals that the Department actually receives. This factual situation is more appropriately considered on a case-by-case basis through the hearing process and the appellate cases concerning nunc pro tunc appeals to administrative agencies.
The final-form rulemaking pertains to the administration of unemployment compensation appeals, revises the manner in which parties may file appeals and determines the timeliness of these appeals. The final-form rulemaking reflects court decisions allowing various means of filing appeals and urges the Board to update its regulations for determining timeliness to reflect advances in technology. The final-form rulemaking codifies the Board's existing and judicially accepted practice of allowing the filing of appeals by fax. It will provide additional means for parties to file appeals, including common carrier services and electronic transmission. The final-form rulemaking will also set a uniform standard for determining the date of filing and timeliness of appeals or notices of appeal. This will result in a reduction in the number of hearings that the Board is required to conduct relating to timeliness of appeals and will assist the Board in meeting Federal guidelines for timely issuance of unemployment compensation decisions.
The final-form rulemaking affects appealing parties and their representatives in unemployment compensation matters. The final-form rulemaking provides these parties with increased flexibility in filing or delivering appeals and with an easily verifiable manner of determining whether an appeal was timely filed or delivered.
There is minimal fiscal impact associated with the final-form rulemaking. Parties will experience some potential savings, as the final-form rulemaking will clarify the manner in which timeliness will be determined and therefore reduce the need for hearings and litigation regarding the timeliness of appeals.
Responses to Comments
The following addresses the common areas of concerns found in the comments received from the public and the Independent Regulatory Review Commission (IRRC).
IRRC objected to the term ''Department office responsible for unemployment compensation'' as it appears in § 101.81(a) and (c) (relating to filing of appeal from determination of Department). In response, the Department changed this term to ''Department appeal office'' and defined the term in § 101.2 (relating to definitions). Instructions accompanying each determination will provide the address of the Department appeal office, among other things. In response to IRRC's comment, the term ''Department-provided'' was also deleted from § 101.81(a).
In response to a comment from IRRC, the Department made arrangements for the appeal form to be available on the Department's website, where the form can be downloaded and printed. This is now in § 101.81(a).
The CLS urged that the regulation require that the Department mail an appeal form to any aggrieved party with the adverse determination. However, § 101.81(b) will memorialize the Department's current practice of mailing instructions to the parties with each determination. The Department's current practice is to mail appeal forms to all parties with each determination, with appropriate instructions.
IRRC asked if appeal information in § 101.81(b) is available from sources other than a Department office responsible for unemployment compensation or a Board office as stated in the proposed rulemaking. These offices represent the minimum number of locations where information can be obtained. The Department may provide this information at other locations that will be considered a Department appeal office. The Department also amended the subsection to reflect that appeal information is available on the Department's website. In addition, this subsection has been amended to provide that the Department will provide appeal instructions with each determination that is issued, including the address and fax number of the Department appeal office, Board office or workforce investment office where an appeal can be filed. This information on filing locations is more extensive than the information concerning filing contained in widely-used 1 Pa. Code §§ 31.5, 31.11 and 33.31 (relating to communications and filings generally; timely filing required; and service by the agency).
The CLS objected to the removal of the appeal ''assistance'' requirements from § 101.81(b) and IRRC requested an explanation for this amendment. Parties in unemployment compensation proceedings are instructed to contact Unemployment Compensation Service Centers by telephone for assistance related to their claim or assistance related to filing an appeal. IRRC also asked whether an individual may obtain information about filing an appeal from a workforce investment office. Subsection (b) reflects that workforce investment offices are responsible for job training and placement, among other programs, and not matters related to unemployment compensation. Workforce investment offices are not able to reliably provide assistance in unemployment compensation matters, because these offices do not have the expertise, funding or staff to provide assistance with unemployment compensation appeals. A workforce investment office may only accept appeal forms. A party seeking information from a workforce investment office will be referred to a Unemployment Compensation Service Center for additional information by workforce investment office staff.
IRRC questioned the removal of § 101.81(b)(7), requiring a local employment office representative sign the appeal. However, ''local employment offices'' no longer accept and process unemployment compensation appeals. Further, this requirement does not assist with the docketing and processing of appeals and would only delay processing of unemployment compensation appeals.
The CLS commented that the requirements for an appeal in § 101.81(c) should be discretionary rather than mandatory. However, the Department requires the inclusion of certain information in an appeal to allow proper docketing and identification of the parties and the determination being appealed. Without this minimum information, the Department may not be able to identify or properly process numerous appeals.
The CLS also requested that § 101.81(d) be amended to set forth language concerning the specifics of a docketing system. The subsection, as drafted, provides reasonable docketing requirements and procedures to adjudicate timeliness issues consistent with appellate court decisions. See Anderson v. Unemployment Compensation Bd. of Review, 423 A.2d 1138 (Pa. Cmwlth. 1981). The system reasonably assures that parties can appropriately appeal adverse determinations by providing instructions and a clear system for filing appeals. This subsection will provide parties the opportunity to present evidence regarding timely filing.
The CLS requested the revision of § 101.81(e) for clarity. However, the Board finds that this subsection is sufficiently clear. Under this subsection, the Board may accept appeals that are not on the Department-provided appeal form, if a party provides other written communication indicating that it disagrees with the determination.
IRRC suggested that the Department provide a definition of the term ''personal delivery'' as it appeared in § 101.82(b)(1), which has been moved to § 101.82(b)(5). For clarification, this definition now appears in § 101.2 and clarifies that personal delivery is any type of onsite delivery to the Department not covered by other subsections in § 101.82(b). This definition will also satisfy IRRC's recommendation that a ''private courier'' may deliver appeals. The date of filing of an appeal filed in this manner is the date the Department received the appeal.
The CLS requested that the final-form rulemaking enumerate the specifics of docketing appeals at workforce investment offices in § 101.82(b)(1). However, as stated, the final-form rulemaking contains reasonable requirements pertaining to the docketing of appeals and the resolution of timeliness issues consistent with appellate cases.
The CLS endorsed permitting parties to file appeals by common carrier in § 101.82(b)(3) and also suggested that the Department list acceptable common carriers. The Department declines to do this, as common carriers frequently change names or cease operations, which would quickly render the final-form rulemaking inaccurate and outdated. Creating a complete and current list will continuously cause substantial logistical difficulties.
IRRC also questioned how an appealing party would know that a common carrier is subject to the authority of the Pennsylvania Public Utility Commission (PUC). The PUC does not register or certify common carriers. However, the PUC exercises authority over common carriers under 66 Pa.C.S. § 510(a) (relating to assessment for regulatory expenses upon public utilities). Parties seeking to file appeals by use of a common carrier may need to inquire and insure that the common carrier is subject to the PUC's authority and regulation. If an appeal is filed by a carrier that is not a common carrier, the appeal will be considered as properly filed by personal delivery under § 101.82(b)(5).
IRRC also expressed concerns with this section regarding the differences in documents used by common carriers to memorialize mailing dates. However, the final-form rulemaking states that the Board will consider a document regularly maintained in the course of business by the common carrier memorializing mailing or shipping dates. This provides parties with greater opportunity to submit reliable evidence concerning timeliness issues.
In response to another comment from IRRC, the Department amended § 101.82(b)(2) to provide that if the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date the Department received the appeal.
IRRC questioned the establishment of a filing date by the date of delivery to a third party in § 101.82(b)(3). However, the Board has long utilized this date by recognizing a United States Postal Service postmark as the date of filing. Further, the Board's approach is consistent with the Commonwealth Court's direction that the Board updates its regulations to recognize common carriers as a reliable method of filing appeals. Copyright, Inc. v. Unemployment Compensation Board of Review, 739 A.2d 219 (Pa. Cmwlth. 1999). This approach also presents greater ease for parties.
IRRC questioned how a discrepancy between a Department fax banner and a sender's fax banner would be resolved in § 101.82(b)(4). However, the final-form rulemaking contains clear direction that a Department fax banner controls the determination of the time of filing. The sender's fax banner will be considered only when the Department banner is illegible or unavailable. IRRC also questioned whether faxes received after the close of business would be considered timely. Accordingly, this section was amended to reflect that the Department will accept faxes received until 12 a.m. on the last day of the appeal period if the Department fax banner demonstrates that the appeal was received before the end of the day on the last day of the appeal period. If the Department's banner is unavailable, the sender's fax banner will demonstrate this information. CLS agreed that faxes should be accepted through 11:59 p.m. on the last day to appeal.
In response to another comment from IRRC, the Department added language to § 101.82(b)(4) that places the appealing party on notice that by using fax transmission as a method of filing, that party is assuming the risk that the appeal may not be properly or timely filed.
The CLS requested that the Department maintain fax activity sheets and make those sheets available to parties without issuance of a subpoena. The Department declines to adopt this approach because the amendments contain reasonable requirements for docketing appeals and resolving timeliness disputes. Parties may keep fax logs or other business records. Parties may introduce these records into evidence before a referee in a hearing concerning the timeliness of an appeal.
The Pennsylvania Chamber of Business and Industry requested that the Department consider a fax confirmation sheet as proof of timely filing, even if the Department has no record of receiving the fax. The Department declines to adopt this approach because the final-form rulemaking is designed to determine the timeliness of appeals that the Department actually receives. A fax confirmation sheet alone may not be adequate proof of timely filing. The factual situation raised by the commentator is more appropriately considered on a case-by-case basis, through the hearing process and based upon appellate cases concerning nunc pro tunc appeals to administrative agencies.
IRRC commented that the term ''information processing system'' in § 101.82(b)(5) of the proposed rulemaking was vague and could be construed to include voice mail. To address this concern, the Department added the term ''written'' to § 101.82(b) to clarify that an appeal must be in writing. Further, § 101.82(b)(5) was amended to change the term ''information processing system'' to ''electronic transmission system'' to clarify that this subsection deals with electronic filing.
IRRC commented that the Department should also amend § 101.102 (relating to form and filing of application for further appeal from decision of referee), as it references the titles of the sections amended by the final-form rulemaking. The final-form rulemaking includes the necessary amendments to § 101.102 reflecting IRRC's comments.
The workforce investment office was deleted from § 101.82(b)(4) as a potential repository for appeals filed by electronic transmission other than fax transmission because these offices do not have this capability.
Reporting, Recordkeeping and Paperwork Requirements
The final-form rulemaking will not increase paperwork for parties in unemployment compensation matters or the Department except that it may eliminate many hearings over the issue of timeliness. The final-form rulemaking will provide recognition for the technological improvements in submission of documents and provide easier methods for transmitting appeals. The final-form rulemaking acknowledges the acceptable means for filing appeals and clarifies the date of filing for each of these methods. Parties who file an appeal without using the Department form will no longer be required to complete that form to perfect an appeal. The Department will still use its current forms, with updated instructions, and it will continue to ensure that an appeal is routed to the Board. Specifically, the Department will provide instructions on fax transmission and the appropriate format for electronic filing. The Department's website will be expanded and updated. There are no significant costs associated with the proposed rulemaking for the Commonwealth or to parties in unemployment compensation cases.
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
There is no sunset date for the final-form rulemaking. The Department will continuously monitor the filing of appeals or notices of appeals and the amendments' effectiveness. The Department will also monitor the filing of appeals to ensure that appeals are filed timely under the amendments and that the date of filing is accurately recorded.
The contact person is Kelly K. Smith, Assistant Counsel, Office of Chief Counsel, Department of Labor and Industry, 10th Floor, Labor and Industry Building, 7th and Forster Streets, Harrisburg, PA, 17121, (717) 787-4186, firstname.lastname@example.org.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 12, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 4720, to IRRC and the Chairpersons of the Senate Labor and Industry Committee and the House Labor Relations Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2), on August 13, 2003, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on August 14, 2003, and approved the final-form rulemaking.
The Department finds that:
(1) Public notice of intention to promulgate administrative regulations by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the rulemaking promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) The final-form rulemaking adopted by this order is necessary and appropriate for the administration of the act.
The Department, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 34 Pa. Code Chapter 101, are amended by amending §§ 101.2, 101.81, 101.82 and 101.102 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as required by law.
(c) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect immediately upon publication.
STEPHEN M. SCHMERIN,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 33 Pa.B. 4372 (August 30, 2003).)
Fiscal Note: Fiscal Note 12-59 remains valid for the final adoption of the subject regulations.
TITLE 34. DEPARTMENT OF
LABOR AND INDUSTRY
PART VI. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
CHAPTER 101. GENERAL REQUIREMENTS
Subchapter A. GENERAL PROVISIONS
§ 101.2. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Board--The Unemployment Compensation Board of Review.
Day--A calendar day.
Department--The Department of Labor and Industry of the Commonwealth.
Department appeal office--A Department office responsible for unemployment compensation where an appeal may be filed and accepted, according to the Department-provided instructions accompanying a determination.
Employment office--A public employment office or branch thereof, operated by the Department or by another state or by the Federal Government under agreement with the Department.
Party--The Department, the claimant, the last employer of the claimant and another employer affected by the appeal proceedings.
Personal delivery--Delivery by or on behalf of a party that is not enumerated in § 101.82(b)(1)--(4) (relating to time for filing appeal from determination of Department) where a person personally files the appeal at a Board office or workforce investment office.
Referee--A referee of the Board.
Tribunal--The Board or one of its referees.
Workforce investment office--An office where the Department provides employment services under the Wagner-Peyser Act (29 U.S.C.A. §§ 49--49m). A workforce investment office may be identified as a Team Pennsylvania CareerLink.
Subchapter C. APPEALS FROM
DETERMINATIONS OF DEPARTMENT
§ 101.81. Filing of appeal from determination of Department.
(a) Appeal forms may be obtained from a Department appeal office, a workforce investment office or the Board's appeals system administrator in Harrisburg and from the Department website (www.dli.state.pa.us).
(b) Information about filing an appeal may be obtained from a Department appeal office, Board office and the Department's website. The Department will provide appeal instructions with each determination, including the address and fax number of a Board office, workforce investment office or a Department appeal office where appeals may be filed.
(c) An appeal from a determination of the Department shall be filed with a Department appeal office, a workforce investment office or a Board office and shall contain the following information:
(1) The name and address of the claimant.
(2) The Social Security number of the claimant, if known.
(3) The date of the determination which is being appealed.
(4) The reasons for appeal.
(5) The name and address of the appellant.
(d) Upon receipt of an appeal, the Department or the Board will docket and process the appeal form.
(e) The Board will consider a written objection to the Department's determination as an appeal and process it under subsection (c) if the appellant does not complete the Department-provided appeal form.
§ 101.82. Time for filing appeal from determination of Department.
(a) A party seeking to appeal a Department determination shall file an appeal in the form and manner specified in § 101.81 (relating to filing of appeal from determination of Department) and this section on or before the 15th day after the date on which notification of the decision of the Department was delivered personally to the appellant or mailed to him at his last known post office address.
(b) A party may file a written appeal by any of the following methods:
(1) United States mail. The filing date will be determined as follows:
(i) The date of the official United States Postal Service postmark on the envelope containing the appeal, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope containing the appeal.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
(2) Common carrier. An appeal may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date the workforce investment office, Board or Department appeal office received the appeal.
(3) Fax transmission.
(i) The filing date will be determined as follows:
(A) The date of receipt imprinted by the Department, the workforce investment office or the Board's fax machine.
(B) If the Department, the workforce investment office or the Board's fax machine does not imprint a legible date, the date of transmission imprinted on the faxed appeal by the sender's fax machine.
(C) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department appeal office, the workforce investment office or the Board when it receives the appeal.
(ii) A party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(iii) A fax transmission is timely filed if it is received by the Department appeal office, workforce investment office or Board before midnight on the last day of the appeal period in accordance with this subsection.
(4) Electronic transmission other than fax transmission. The date of filing is the receipt date recorded by the Department appeal office or the Board's electronic transmission system, if the electronic record is in a form capable of being processed by that system. A party filing by electronic transmission shall comply with Department instructions concerning format. A party filing an appeal by electronic transmission is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(5) Personal delivery to a workforce investment office or the Board. The filing date will be the date the appeal was personally delivered to the workforce investment office or the Board during its normal business hours.
§ 101.102. Form and filing of application for further appeal from decision of referee.
A party shall file an appeal from a referee's decision in accordance with §§ 101.81 and 101.82 (relating to filing of appeal from determination of Department; and time for filing appeal from determination of Department).
[Pa.B. Doc. No. 03-1837. Filed for public inspection September 19, 2003, 9:00 a.m.]
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