This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Paul F. Zivalich,





Unique Concepts Promotions, Inc.,



Commissioner of Employment and

Economic Development,



Filed August 19, 2003


Hudson, Judge


Department of Employment and Economic Development


Ryan T. Murphy, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, Minnesota 55402-1425 (for relator)


Unique Concepts Promotions Inc., 420 Ridgeview Circle, Medina, Minnesota 55340 (respondent)


Lee B. Nelson, M. Kate Chaffee, Department of Employment and Economic Development, 390 North Robert Street, St. Paul, Minnesota 55101 (for respondent commissioner)


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



Relator argues that he never received his notice of disqualification regarding unemployment benefits and that he first learned of the disqualification when he later received a notice of overpayment.  He attempted to appeal the disqualification and overpayment decisions, but an unemployment law judge dismissed his disqualification appeal as untimely and concluded that the overpayment decision was appropriate.  The Commissioner of the Department of Employment and Economic Development[1] affirmed both decisions.  Relator contends that because he never received the notice of disqualification, and because he is proceeding pro se, his due-process rights will be violated if he does not receive a decision on the merits.  Because relator’s appeal of the disqualification was untimely, and because the amount of the overpayment is undisputed, we affirm.


On May 6, 2001, relator Paul F. Zivalich established an account for unemployment benefits with the Department of Employment and Economic Development (the department) at $427 per week.  The next day, Zivalich separated from employment with respondent Unique Concepts Promotions, Inc.  Zivalich later requested and received $854 in unemployment benefits for two weeks in May 2001.  Zivalich waited nearly nine months before requesting additional unemployment benefits in March 2002.  He eventually received $3,416 in unemployment benefits for the weeks ending March 16, 2002, through May 4, 2002.

Some time after Zivalich began receiving the benefits distributed in 2002, the owner of Unique Concepts told the department that Zivalich quit his employment with the company to pursue other employment.  Based on this information, a department adjudicator determined that Zivalich was disqualified from receiving unemployment benefits.

On June 24, 2002, the department mailed a determination-of-disqualification letter to Zivalich at his correct mailing address.  That letter stated that the determination of disqualification would become final unless an appeal was filed in writing within 30 calendar days after the date of mailing.  Zivalich testified that he never received this letter.

Based on Zivalich’s previously determined disqualification, a department adjudicator concluded that Zivalich had received overpayments totaling $4,270.  On July 1, 2002, the department mailed a determination-of-overpayment letter to Zivalich at his correct mailing address.  Zivalich received this letter shortly after it was mailed.

Zivalich appealed both decisions on July 31, 2002.  On the first issue, regarding the determination of disqualification, an unemployment law judge (ULJ) concluded that Zivalich’s appeal was untimely and dismissed the appeal for lack of jurisdiction.  The commissioner affirmed the ULJ’s decision on October 29, 2002.  On the second issue, regarding the determination of overpayment, the ULJ concluded that the department adjudicator properly determined that Zivalich had been overpaid and that he had to repay amounts totaling $4,270.  The commissioner also affirmed this decision on October 29, 2002.  Zivalich now appeals from the commissioner’s two orders.


A.     Determination of Disqualification

Zivalich first argues that the commissioner erred by dismissing his appeal as untimely.  An appeal asserting that the commissioner erred by dismissing an appeal as untimely involves a question of law, which is reviewed de novo.  Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn. App. 1999).

“A determination of disqualification * * * shall be final unless an appeal is filed by the applicant * * * within 30 calendar days after mailing.”  Minn. Stat. § 268.101, subd. 2(e) (2002).  Here, the department mailed the determination-of-disqualification letter on June 24, 2002.  Zivalich did not file his appeal of the determination until July 31, 2002.

Zivalich, who was pro se when he appealed to the department, does not dispute that he filed the appeal seven days after the limitations period had run.  Rather, he argues that the reason he did not file a timely appeal was because he did not receive the determination-of-disqualification letter.  He contends that his first notification of adverse action was the determination of overpayment, which was mailed to him on July 1, 2002.  Because of the unique circumstances of the case, we granted Zivalich’s motion to make an offer of proof regarding the documents that he would submit into evidence if this court were to reverse and remand for further proceedings.  Two of those documents state that some residents in Zivalich’s condominium complex reported stolen mail during the relevant time period, and the third is a department document intended for another recipient but sent to Zivalich, apparently in error.

The law is clear that in such matters, the limitations period begins to run regardless of whether the recipient receives actual notice.  Smith v. Masterson Pers., Inc., 483 N.W.2d 111, 112 (Minn. App. 1992); Johnson v. Metro. Med. Ctr., 395 N.W.2d 380, 382 (Minn. App. 1986).  The appeal period begins upon the mailing of the determination.  Smith, 483 N.W.2d at 112.  A statutory period for appeal is “absolute and unambiguous,” Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 430, 244 N.W.2d 663, 666 (1976), and that period “should be strictly construed, regardless of mitigating circumstances.”  King v. Univ. of Minn., 387 N.W.2d 675, 677 (Minn. App. 1986) (citations omitted), review denied (Minn. Aug. 13, 1986).  If an appeal is not filed within the statutory period, the appeal must be dismissed.  Erickson v. Super Valu, 343 N.W.2d 698, 700 (Minn. App. 1984).

The facts in Smith are remarkably similar to those here.  See 483 N.W.2d at 111.  Smith, a pro se relator, failed to file a timely appeal regarding the determination of disqualification, but he did file a timely appeal of the determination of overpayment.  Id. at 112.  Smith argued that the commissioner erred by not considering U.S. Postal Service delays in delivering the notice.  Id.  This court concluded that the commissioner properly dismissed the appeal, holding that the date of mailing commences the appeal period and that “[r]eceipt of the mailing is not determinative for purposes of the statute.”  Id.  The court in Smith also held that because the issue of disqualification had been resolved, the relator was estopped from disputing the disqualification issue in the overpayment proceedings.  Id. at 113.

Smith is controlling and virtually indistinguishable from the present facts.  Here, the commissioner’s representative considered evidence and testimony regarding the automated procedures involved in mailing the determinations of disqualification.  The representative also considered Zivalich’s testimony that he had not received the letter.  The commissioner then made the factual determination that the department had, in fact, mailed the letter.  The proper determination is not whether the relator receives the letter, but whether—and when—the letter is sent.  Smith, 483 N.W.2d at 112; Johnson, 395 N.W.2d at 382.  The commissioner’s representative here made the reasonable determination that the letter had, in fact, been mailed to Zivalich.

The additional evidence that Zivalich provided as an offer of proof indicates that mail has been stolen from other condominium residents and that the department’s automated mailing process is capable of error.  But that evidence does not directly address the question of whether the department mailed Zivalich’s disqualification letter on June 24, 2002.  Significantly, Zivalich does not argue that any of his personal mail has been stolen.  Further, the evidence demonstrating that he was the unintended recipient of another department letter dated October 14, 2002 does not show by a preponderance of the evidence that the department did not mail his determination-of-disqualification letter on June 24, 2002.  The commissioner’s representative considered, and apparently found persuasive, the contrary evidence that the department’s automated mailing machinery was working properly on the date the determination of disqualification was mailed to Zivalich.  We see no basis to disturb this finding.

Zivalich notes his pro se status and asks this court to exercise its equitable powers to provide him with “latitude and consideration.”  Liptak v. State, 340 N.W.2d 366, 367 (Minn. App. 1983); see LaFreniere-Nietz v. Nietz, 547 N.W.2d 895, 898 (Minn. App. 1996) (holding that “a court may supplement statutes with equitable principles”) (citation omitted).  But Minnesota law prohibits this court from doing so in the context of unemployment benefits. Minn. Stat. § 268.069, subd. 3 (2002) (“There shall be no equitable or common law denial or allowance of unemployment benefits.”).  Time limitations are jurisdictional and must be strictly construed, even in cases involving pro se litigants.  Smith, 483 N.W.2d at 112; see King, 387 N.W.2d at 677 (holding that time limits must be enforced despite mitigating circumstances).  The court in Smith did not provide that pro se relator with the latitude Zivalich seeks here.  Zivalich, in effect, urges this court to overrule Smith—we decline to do so.

Zivalich next contends that he should be afforded a decision on the merits because doing so would not result in harm or prejudice, relying on In re Ultraflex Enters. Appeal, 494 N.W.2d 89, 92 (Minn. App. 1992).  But Zivalich’s reliance on Ultraflex is misplaced as the Ultraflex holding narrowly applies to a specific statute that caused an “understandable” error confusing a 30-day limitations period in one rule with a 60-day period in a statutory section.  Id.  Here, there is no dispute that Minn. Stat. § 268.101, subd. 2(e), is controlling and sets a 30-day appeal period upon mailing of the determination.

Finally, Zivalich argues that he is entitled to a decision on the merits because the dismissal elevates “form over substance” and denies him “any meaningful review.”  Harms v. Oak Meadows, 619 N.W.2d 201, 203-04 (Minn. 2000) (Justice Anderson, concurring specially).  But at times, the controlling statutes mandate this result.

[A]pplication of the statute [limiting review to situations where a writ is timely served upon parties] in the context of the facts before us has aspects of elevating form over substance and denies [relator] any meaningful review.  This is an unfortunate result, but one mandated by the statute.


For these reasons, the commissioner did not err by concluding that Zivalich’s appeal of his determination of disqualification was untimely.

B.    Determination of Overpayment

Zivalich does not dispute the amount of the overpayment.  Rather, his sole argument is based on his claim that he never received the initial disqualification letter.  In subsequent proceedings regarding an overpayment determination, a relator is prevented from arguing any error in the prior disqualification decision.  Minn. Stat. § 268.18, subd. 1(b) (2002) (“An applicant may not collaterally attack, by way of an appeal to an overpayment determination, any prior determination [of disqualification] that has become final.”); Smith, 483 N.W.2d at 113.  But as stated earlier, the appeal period begins to run upon the mailing of the determination, regardless of whether the recipient receives actual notice.  Because Zivalich failed to appeal the initial disqualification within the statutory period, the appeal was properly dismissed.  Therefore, the commissioner did not err by concluding that Zivalich improperly received, and must repay, unemployment benefits totaling $4,270.




[1] Formerly the Department of Economic Security.