LLC v. Administrator, Unemployment Compensation Act et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT

This is a statutory appeal brought by the employer, Glenbrook Dental Associates, LLC, from a determination that Monica Padilla, a former employee, was eligible for unemployment benefits.   The Employment Security Board of Review certified and filed with the court the record of proceeding pursuant to Conn. Gen.Stat. § 31–249b.   The record indicates that the Administrator made an initial determination that the claimant was eligible for benefits effective April 22, 2012.   The employer filed a late appeal on May 21, 2012, from the Administrator's initial determination.   The Appeals Referee dismissed the appeal on July 25, 2012 following a de novo hearing for lack of jurisdiction.   The employer filed a timely appeal of the Appeals Referee's decision to the Board of Review on August 15, 2012.  Conn. Gen.Stat. § 31–248.   The Board of Review affirmed the Appeals referee's Decision on November 1, 2012.   The employer then filed a timely appeal to this court on November 29, 2012.   Conn. Gen.Stat. § 31–149b.

The court has reviewed the record certified to it by the Board of Review, the defendant's motion for judgment, the plaintiff's pleadings, and has considered all of the submissions and the arguments of the Assistant Attorney General, and Monica Padilla.

The court has no authority to find facts in an unemployment compensation appeal hearing.   It is limited to reviewing the record certified to it by the Board of Review.   Credibility of witnesses is evaluated at the administrative level and not in this court hearing.   In order for the court to review the facts, a motion to correct the findings must have been filed.   That was not done in this case, although it is clear that notice was given concerning that procedure in the decision itself sent to the plaintiff.

The court understands the claim of the plaintiff, but is by law required to treat this as a record review not a new hearing.   The issue, therefore, is whether the decision of the Board of Review was unreasonable, arbitrary or illegal in determining that the employer's appeal was beyond the 21–day statutory period to file an appeal to the Appeals Referee.   Moreover, a LLC may not appear pro se but must do so only through counsel.  Learning Express v. Administrator, 1999 WL 370702 (Conn.Super.(1999)).

As the Board of Review found:

We find that the administrator's decision in this case was mailed on April 26, 2012, and that the employer's appeal to the referee from that decision was filed on May 21, 2012, beyond the twenty-one day appeal period allowed by law.   The record of the referee's hearing reveals that Dr. Koutsoukous, the individual who handles the employer's unemployment compensation matters, filed an appeal on the employer's behalf by placing the appeal in a mailbox.   Although the appeal contains a siguature date of May 14, 2012, the administrator did not receive the appeal until May 21, 2012.   The appeal bears a United States postal service postmark dated May 19, 2012.  (May 17, 2012 was the date the appeal was to be filed.)

As the referee stated in her decision, we have ruled that an appellant's testimony that it deposited its appeal in a mailbox is insufficient to satisfy the burden of proof as to timely filing by mail.   See Floriani v. Comfort Air Distributors, Inc., Board Case No. 426–BR–88 (12/28/88);  Rudman v. SakeCafe Japanese Restaurant, Board Case NO. 1618–BR–09 (10/23/09).   Our statute requires that an appeal be filed with the appeals division or postmarked by the postal service within the twenty-one day appeal period.   An appellant who wishes to assure a proper postmark must deliver the appeal directly to the postal authorities within the specified time or suffer the consequences.   Placing the appeal in a mailbox does not guarantee that it will be postmarked that day.   The employer has not presented any evidence that corroborates its claim that it filed a timely appeal.

We conclude that the referee was required by law to dismiss the appeal because the employer did not show good cause for the late filing of its appeal.   In so ruling, we adopt the referee's findings of fact, except that we substitute the following in lieu of the second sentence of the referee's finding of fact no.   2:  Doctor Koutsoukous decided not to fax the protest to the administrator but to place it in a mailbox.

Board of Review Decision (November 1, 2012) at 2 (Rec at 33).

The court does not retry the facts or hear evidence.   The court finds the decision of the Board of Review on the merits follows reasonably from the facts found, and the correct application of the law to those facts.   The decision is not arbitrary, capricious, or contrary to law.

The decision is affirmed, and the defendant's Motion for Judgment, Motion # 102.00 dated April 9, 2012 is granted.

The appeal is dismissed.

EDWARD R. KARAZIN, JR.

JUDGE TRIAL REFEREE

Karazin, Edward R., J.T.R.