This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1711

 

 

Wayne E. Gross,

Relator,

 

vs.

 

Post Specialty Co.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

 

Filed April 24, 2001

Reversed
Klaphake, Judge

 

Department of Economic Security

File No. 141200

 

Stefan A. Tolin, 540 Norwest-Midland Building, 401 2nd Avenue South, Minneapolis,  MN 55401 (for relator)

 

Post Specialty Company, 2550 Kasota Avenue, St. Paul, MN  55108 (pro se employer)

 

Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert St., St. Paul, MN  55101 (for respondent Commissioner)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Relator Wayne Gross challenges a decision by a representative of the respondent Commissioner of Economic Security determining that the employer, respondent Post Specialty Company, timely appealed the department’s initial determination that relator was not disqualified from receiving benefits and that relator was discharged because of employment misconduct.  Because no competent evidence was presented, either by the commissioner or by the employer, to establish that the employer timely appealed the department’s initial determination of nondisqualification, we reverse.

D E C I S I O N

            Minn. Stat. § 268.101, subd. 2(f) (Supp. 1999) provides in pertinent part:

A determination of disqualification or a determination of nondisqualification shall be final unless an appeal is filed by the applicant or notified employer within 30 calendar days after mailing.  The determination shall contain a prominent statement indicating the consequences of not appealing.

 

These time limits for appealing a decision from the department are jurisdictional and strictly construed.  See Johnson v. Metropolitan Med. Ctr., 395 N.W.2d 380, 382 (Minn. App. 1986).  “Lack of a timely appeal requires dismissal of the appeal for lack of jurisdiction regardless of alleged mitigating circumstances.”  Baldinger Baking Co. v. Stepan, 354 N.W.2d 569, 571 (Minn. App. 1984) (citation omitted), review denied (Minn. Dec. 20, 1984).

            The department initially determined that relator was not disqualified from receiving benefits because the employer allowed him to continue working for more than seven months after he lost his driver’s license because of a second conviction for driving while intoxicated.  The record contains a copy of the department’s determination of nondisqualification, which was mailed to the parties on September 4, 1999.  This determination contained explicit language notifying the parties of their right to appeal and the procedures to follow for such an appeal, including the address to which such an appeal should be sent.  When no appeal was received by the department within 30 days, the initial determination of nondisqualification became final and relator began collecting benefits.

            Several months later, in January 2000, after being notified that relator’s benefits would be charged to its experience rating account, the employer’s office manager, Karen Class, wrote to the department, claiming that the employer had protested relator’s claim for benefits.

            At a hearing on the timeliness of the employer’s appeal, Class appeared and produced for the first time a copy of a letter dated September 10, 1999, signed by the employer’s owner, Stephen Helland, in which he stated that “we should not be charged for the employer’s experience rating and [relator] should not receive benefits.”  The unemployment law judge concluded that “[e]ven though the Department has no record of receiving the September 10, 1999 appeal letter, * * * the employer did file it in a timely manner.”  The judge further concluded that the matter should be set for a hearing on the merits, but that the question of timeliness “may be reopened at that hearing.”

            At the second hearing, the department’s file included as an exhibit what appeared to be the original of the September 10, 1999 letter.  The department’s copy of this letter was stamped as having been received by the Appellate Section on February 24, 2000, and contained a handwritten notation in the lower left hand corner, “rcvd 9-13-99 CC.”  There was no explanation as to how this copy of the letter got into the department’s file, nor was there any explanation as to why it was not stamped received until February 24, 2000, or who had initialed the letter as having been received “9-13-99.”

            Class, who again appeared on behalf of the employer, acknowledged that Helland was not willing to appear at the hearing or testify.  Class testified that Helland told her that he had mailed the letter, but she admitted that she did not know for certain when he mailed it or to what address it was sent.  Class further admitted that the employer took no further action until January 2000, when it was notified that its experience rating would be charged.

            In its appellate brief, the commissioner now suggests that Helland must have mailed the letter to the initial department adjudicator on the case, and that this adjudicator must have received the letter on September 13, 1999, as indicated by the handwritten notation “rcvd 9-13-99 CC.”  The commissioner further speculates that the employer’s letter must have been “misplaced or misfiled [by the adjudicator] because it wasn’t received by the appellate section until February 24.”

            Relator argues that the September 10, 1999 letter is not competent, credible evidence sufficient to support a finding that the employer’s appeal is timely.  We agree. Although evidentiary hearings in unemployment law cases are not bound by statutory and common law rules of evidence, an unemployment law judge “shall only use reliable, probative, and substantial evidence as a basis for decision.”  Minn. R. 3310.2922 (1999).

            Although it would have been relatively easy for either the department or the employer to submit testimony or an affidavit regarding the mailing and receipt of the letter, no such evidence was presented.  Class, the only person to testify regarding the letter, had no personal knowledge of the circumstances surrounding its mailing.  See Minn. R. Evid. 901(b)(1) (witness with personal knowledge may authenticate document); 602 (witness may not testify to matter where witness lacks personal knowledge).  Class’s statements that Helland told her that he mailed the letter constitute hearsay, and fail to establish sufficient foundation for the letter.  See Minn. R. Evid. 802 (hearsay inadmissible).  Given the lack of foundation or authentication for the letter, we conclude that no reliable or competent evidence was presented to prove that the letter was timely mailed to the department.  See Department of Employment Sec. v. Minnesota Drug Prods., Inc., 258 Minn. 133, 135, 104 N.W.2d 640, 643 (1960) (written statement by department employee that notice was mailed to employer on certain date was not competent evidence and was “of little significance in the absence of proof of mailing or at least some showing as to the knowledge and duty of the [employee] in this regard or of the circumstances under which the notation was made.”).

            We therefore conclude that the employer’s appeal was untimely and reverse the decision of the commissioner’s representative.

            Reversed.