PROPOSED RULEMAKING
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CH. 101]
Appeals from Determinations of Department
[32 Pa.B. 4720] The Department of Labor and Industry (Department), Unemployment Compensation Board of Review (Board), proposes to amend Chapter 101 (relating to general requirements) to read as set forth in Annex A.
Statutory Authority
The amendments are proposed under the authority provided in section 3(d) of the Unemployment Compensation Law (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 (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.
Compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation''
The Board solicited input regarding the proposed rulemaking 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.; 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 input from four organizations: Employer's Unity, Inc.; Community Legal Services; the Pennsylvania AFL-CIO; and the Duquesne University Unemployment Compensation Clinic.
One stakeholder 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. After consideration, the Board will provide that a United State 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.
Some stakeholders expressed some concern about the use of postage meter marks for determining timeliness, where there is no official United States Postal Service postmark. The Board has considered the stakeholders' concerns regarding the potential for fraud. However, it feels that this potential is outweighed by its interest in providing parties with additional methods by which to file appeals and that there are laws and rules of professional conduct that would deter and punish this conduct.
Some stakeholders also stated that the proposed rulemaking does not address cases when a party alleges that an appeal was filed; however, the Department has no record of receiving the appeal. The proposed rulemaking is 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, weighing the individual circumstances of each case, the credibility of the testimony and evidence presented by the appealing party and the case law concerning nunc pro tunc appeals to administrative agencies.
Purpose
The proposed 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 proposed rulemaking reflects court decisions allowing various means of filing appeals and urging the Board to update its regulations for determining timeliness to reflect advances in technology. The proposed rulemaking will codify the Board's existing and judicially accepted practice of allowing the filing of appeals by fax. The proposed rulemaking will provide additional means for parties to file appeals, including common carrier services and electronic transmission. The proposed 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.
Background
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 filing of appeal from decision determination of Department) recognizes only actual delivery to the Department or the Board or an official United Sates postmark as the filing date. The Department has accepted appeals or notice of appeals through various other methods, including fax transmission and common carrier and 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 Bd. 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 the 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).
Summary of Proposed Rulemaking
Section 101.2. Definitions.
The proposed rulemaking will add a definition of ''workforce investment office'' as an office where the Department provides employment services under the Wagner-Peyser Act (29 U.S.C.A. §§ 49--49m). A Team Pennsylvania CareerLink may serve as this office.
Section 101.81. Filing of appeal from determination of Department.
The word ''determination'' will replace the word ''decision'' in the section heading to reflect the terminology contained in sections 501 and 502 of the act. The proposed rulemaking will alter § 101.81(a) by providing instructions to appealing parties regarding approved appeal forms. The parties may obtain information regarding the filing of an appeal from a Department office responsible for unemployment compensation or a Board office.
The description of the contents of the appeal form, formerly contained in subsection (a), will be placed in subsection (c) in the proposed rulemaking. The proposed rulemaking removes the requirement that an appeal contain the appealing party's signature. The proposed rulemaking will permit appeals filed by electronic transmission. The proposed rulemaking changes the term ''decision'' to ''determination'' to reflect the terminology of sections 501 and 502 of the act.
The proposed rulemaking completely deletes the current language of § 101.81(b). The proposed subsection is amended to state that information about filing an appeal may be obtained from a Department office responsible for unemployment compensation or a Board office.
The proposed rulemaking will add § 101.81(d) which requires the Department or the Board to docket and process appeals.
Section 101.81(e) is added and will provide that any written notice that may reasonably be construed as an appeal will be processed as an appeal without requiring the appellant to complete an official appeal form.
Section 101.82. Time for filing appeal from determination of Department.
The proposed rulemaking amends the section heading with the addition of the words ''time for filing'' and the deletion of the phrase ''filing of.'' The word ''determination'' replaces ''decision.''
The proposed rulemaking will delete subsection (a) because this information will be contained in proposed § 101.81(a). Subsection (a), as amended, will contain the information previously contained in subsection (b), which sets forth the 15-day appeal period.
Section 101.82(b) of the proposed rulemaking sets forth acceptable methods of filing appeals and determination of the filing date according to the filing method used. Subsection (b)(1) will provide that an appeal may be personally delivered to a local employment office or the Board during its normal business hours. The filing date will be the date of personal delivery.
Subsection (b)(2) will provide that an appeal may be filed by United States Postal Service mail. The filing date will be the date of the official United States postmark appearing on the document, a United States Postal Service Form 3817 (Certificate of Mailing) or certified mail receipt. If there is no official United States postmark, United States Postal Service Form 3817 (Certificate of Mailing) or certified mail receipt, the date of a postage meter mark will determine the date of filing. If there is no legible postmark or postage meter mark, the date of filing will be the date of receipt indicated by the Department.
Subsection (b)(3) will allow appeals delivered by a common carrier, which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The filing date will be the date that the document was delivered to the common carrier. A document or record prepared by the common carrier may be used as evidence of filing.
Subsection (b)(4) will provide for appeals filed by fax transmission. The transmission date imprinted by the Department's or the Board's receiving fax machine will be the date of filing. If no legible date appears, the date imprinted by the sender's fax machine will be the date of filing. If there is no legible date of transmission, the date of filing will be the date of receipt indicated by the Department.
Subsection (b)(5) will provide for appeals filed by electronic transmission. It places the risk of delay, disruption, interruption of electronic signals and readability of the document on the filing party. The date of filing will be the receipt date provided by the Department's information processing system. An appellant filing by electronic transmission will have to comply with the Department's instructions concerning format.
The proposed rulemaking will delete § 101.82(c) and (d).
Affected Persons
The proposed rulemaking affects appealing parties, and their representatives, in unemployment compensation matters. The proposed 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.
Fiscal Impact
There is minimal fiscal impact associated with this proposed rulemaking. Parties will experience some potential savings, as the proposed 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.
Reporting, Recordkeeping and Paperwork Requirements
The proposed rulemaking will not increase paperwork for parties in unemployment compensation matters or the Department. The proposed rulemaking will provide recognition of the technological improvements in submission of documents and provide easier methods for transmitting appeals. The proposed rulemaking acknowledges the acceptable means for filing appeals. It 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. There are no significant costs associated with the proposed rulemaking for the Commonwealth or to parties to unemployment compensation cases.
Effective Date
The proposed rulemaking will be effective upon publication in the Pennsylvania Bulletin as a final-form rulemaking.
Sunset Date
There is no sunset date for the proposed rulemaking. The Department will continuously monitor the filing of appeals or notices of appeals and the proposed rulemaking's effectiveness. The Department will also monitor the filing of appeals to ensure that appeals are filed timely under the proposed rulemaking and that the date of filing is accurately recorded.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to the Department within 30 days of publication in the Pennsylvania Bulletin. These may be submitted to 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, e-mail to kellsmith@state.pa.us or faxed to (717) 783-5027.
Regulatory Review
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 this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate Labor and Industry Committee and the House Labor Relations Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of objections raised.
JAMES J. MCNULTY,
SecretaryFiscal Note: 12-59. No fiscal impact; (8) recommends adoption.
Annex A
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:
* * * * * Department--The Department of Labor and Industry of the Commonwealth.
* * * * * 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 [DECISIONS] DETERMINATIONS OF DEPARTMENT § 101.81. Filing of appeal from [decision] determination of Department.
(a) Department-provided appeal forms may be obtained from a Department office responsible for unemployment compensation, a workforce investment office or the Board's appeals system administrator in Harrisburg.
(b) Information about filing an appeal may be obtained from a Department office responsible for unemployment compensation or an office of the Board.
(c) An appeal from a [decision] determination of the Department shall be filed [in a local employment office] with a Department office responsible for unemployment compensation, a workforce investment office or a Board office and shall [include] contain the following information[, furnished by appellant]:
(1) The name and address of the claimant.
* * * * * (3) The date of [decision] the determination which is being appealed.
* * * * * (5) The [signature] name and address of the appellant.
[(b) Assistance in completing the appeal form and perfecting the appeal may be obtained at a local employment office or at an office of the Board, with the following information to be furnished by the local employment office representative:
(1) The appeal number.
(2) The nature of the decision from which appeal is being filed.
(3) The date of the application of claimant for benefits or claim weeks.
(4) The name and address of employers who have filed information in writing, and the date thereof, which might raise a question as to the eligibility of the claimant.
(5) The name and address of the last employer of claimant.
(6) The date and number in which appeal was delivered by appellant, personally or by mail.
(7) The signature of the local employment office representative.]
(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. [Form of] Time for filing appeal from [decision] determination of Department.
(a) [Appeal forms approved by the Board may be obtained from a local employment office or the secretary of the Board at Harrisburg.
(b) An appeal from a decision of the Department shall be filed within the prescribed time if it is filed] A party seeking to appeal a Department determination shall file an appeal in the form and manner [as] specified in § 101.81 (relating to filing of appeal from determination of Department) and this [part] 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 an appeal by any of the following methods:
(1) Personal delivery to a workforce investment office or to the Board. The filing date will be the date the appeal was personally delivered to the workforce investment office or Board, during its normal business hours.
(2) 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.
(3) 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.
(4) Fax transmission. The filing date will be determined as follows:
(i) The date of receipt imprinted by the Department, the workforce investment office or the Board's fax machine.
(ii) 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.
(iii) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Department, the workforce investment office or the Board when it receives the appeal.
(5) Electronic transmission other than fax transmission. The date of filing is the receipt date recorded by the Department, the workforce investment office or the Board's information processing 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.
[(c) Use of the prescribed appeal form is not mandatory to initiate an appeal. The following procedure may be followed:
(1) A written notice specifically advising that the interested party thereby files an appeal or requests a review of decision, delivered or mailed to a representative of the Department or Board, within the prescribed 15-day appeal period, shall constitute an appeal from the decision of the Department and will be processed accordingly without requiring the appellant to complete the appeal form.
(2) A written notice that may reasonably be construed as a request for an appeal, delivered or mailed to a representative of the Department or Board, within the prescribed 15-day appeal period, advising that the interested party is aggrieved and apparently desires a review of the decision, shall be deemed to initiate an appeal and shall constitute an appeal from the decision of the Department, if the appellant subsequently perfects the appeal by filing a completed appeal form within a reasonable time after instructions for filing the appeal form have been delivered or mailed to him at his last known post office address. (In order to expedite the disposition of claims, the interested party will be requested to return the completed appeal form within 15 days after instructions for filing the appeal form have been delivered or mailed to him.)
(d) The date of initiation of an appeal delivered by mail, either on the prescribed appeal form or by any form of written communication, shall be determined from the postmark appearing upon the envelope in which the appeal form or written communication was mailed.]
[Pa.B. Doc. No. 02-1678. Filed for public inspection September 27, 2002, 9:00 a.m.]
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