STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MAMA DE MARINIS ORIGINAL RECIPES, INC., Transferee

and

DE MARINIS PIZZA PLACE INC., Transferor

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 653396 (Transferee), Account No. 330433 (Transferor), Hearing No. S9800152MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the Mama De Marinis Original Recipes, Inc.

Wis. Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on January 27, 1999, the last day on which a timely petition for review could have been filed was February 17, 1999. The petition for review was received May 24, 1999. It was postmarked May 20, 1999.

For the reasons described in the attached Memorandum Opinion, the commission finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a). The commission therefore issues the following:

DECISION

The petition for review is dismissed.

Dated and mailed July 15, 1999
mamaspi.spr : 110 : PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Late Petition For Review issue -- The family of Vincent and Luicille De Marinis operated a pizza restaurant business in Milwaukee. It had a business location at 2457 S Wentworth Avenue, operating under the business name "De Marinis Pizza Place". By the mid-1990's, the business was incorporated as De Marinis Pizza Place Inc. Two of Vincent and Lucille's sons, Dominic and Philip De Marinis, were involved in the operation of that business. In 1996, Vincent and Lucille De Marinis and two of their daughters, RoseMary (Latter) and Josephine De Marinis, formed another corporation, Mama De Marinis Original Recipes, Inc., and filed a Report Of Business Transfer asserting that the business of De Marinis Pizza Place Inc. on Wentworth Avenue had been transferred to it. (1)

Following an investigation, the department issued an Initial Determination finding that a business transfer had occurred from De Marinis Pizza Place Inc. to Mama De Marinis Original Recipes, Inc., and directing that the unemployment compensation account of De Marinis Pizza Place Inc., as transferor, would be transferred to Mama De Marinis Original Recipes, Inc., as transferee.

The supposed transferor, De Marinis Pizza Place Inc., appealed. Following a hearing, at which no appearance was made by Mama De Marinis Original Recipes, Inc., an administrative law judge found that there had not been a business transfer under the applicable legal standards, and he reversed the initial determination.

A copy of the administrative law judge's decision was mailed to the parties, including petitioner, on January 27, 1999. The copy mailed to petitioner was mailed to its address at 2457 S Wentworth Avenue.

The last day on which a timely petition for commission review of the administrative law judge's decision could have been filed was February 17, 1999. No petition for review was filed by that date. On May 20, 1999, Mama De Marinis Original Recipes, Inc. filed documents with the department which have been treated as an attempt to petition for review.

As is noted above, the petition for review was clearly untimely, and the dispositive issue is whether the petitioner, Mama De Marinis Original Recipes, Inc., has shown probable good cause that the reason for having failed to file the petition timely was beyond its control.

Petitioner argues that compelling personal circumstances justify a finding that the lateness of the petition was for a reason beyond petitioner's control. The petitioner explains that by early 1999, Lucille De Marinis was suffering from advanced terminal cancer and required 24-hour-a-day care. She and her husband Vincent, who was also elderly and needed care, resided in the family apartment which was located above the pizza restaurant at 2457 S Wentworth Avenue. The De Marinis' daughters, RoseMary (Latter) and Josephine De Marinis, explain that they were both involved in providing the constant care required by their dying mother, and that due to the pressure of this tragic situation they did not attend to business matters and in fact did not open mail for extended periods. They concede that they did not open mail for at least a period of several weeks, and that they only opened the envelope containing the administrative law judge's decision in this case on February 17, 1999 - which was the last day of the appeal period. They also explain that they then conveyed the information about the decision to their attorney on the following day. (2)

The explanation offered by Mama De Marinis Original Recipes, Inc. appeals to sympathy, but the decision must be based on a fair and even-handed application of the applicable legal standard, which looks to whether it was "beyond the control" of a party to file a timely petition. The commission cannot find that it was beyond the control of Mama De Marinis Original Recipes, Inc. to have filed a timely petition in this case.

There is no dispute that the administrative law judge's decision was mailed to Mama De Marinis Original Recipes, Inc. on January 27, 1999, using its correct address (2457 S. Wentworth Ave., Milwaukee, WI 53207-1932). There is no dispute that it was in fact received there, and there is no reason to doubt, that it was in fact received there within only a few days of its mailing. It is not disputed that during the weeks following the issuance of the administrative law judge's decision, two persons who were directly involved in the business of Mama De Marinis Original Recipes, Inc. and were in fact officers of the corporation -- Josephine De Marinis and RoseMary Latter -- were frequently at the location where the mail was delivered. (3) In fact, from their assertions as to the need for round-the-clock care of Lucille De Marinis, it seems reasonable to conclude that one or both of the daughters was there every day. It is simply not reasonable to believe that they were always so busy that they could not take the time even to open mail which would have been of obvious potential importance (i.e., a letter from the UI Division of DWD).

The commission also takes note of the fact, that the De Marinis daughters had help with the task of caring for their parents, which would have given them the time to do this. According to their affidavits, a nurse came to the home to provide in-home hospice care 2 times a week, and a nurses aide came once a week. That means that at least 3 times a week, there was someone else arriving to take over the responsibility of caring for the parents, even if only briefly, and to give one or the other of the daughters (whoever was there at the time) the opportunity to do such things as catch up on mail.

Given these circumstances, the argument that it was "beyond their control" to even open the mail for a period of several weeks is one which the commission finds unpersuasive.

The commission also takes note of the fact, that it is conceded that the administrative law judge's decision was actually opened and inspected on February 17, 1999, a day on which an appeal could still have been timely filed. The decision prominently stated on its face that an appeal had to be received or postmarked by February 17, 1999 -- yet unaccountably (4), no one contacted the attorney for Mama De Marinis Original Recipes, Inc. until the following day. Clearly, one of the daughters had the time to open and read mail on February 17, 1999, and that suggests that she would also have had the time to pick up her telephone and call her attorney on that day. A petition for review could have been easily filed that day, either by delivery in person, or by FAX, see Wis. Admin. Code Ch. LIRC 1.025, or by mailing which achieved a postmark on that day, see, Wis. Stat. § 108.09 (6)(a), Wis. Admin. Code LIRC Ch. 1.02, 2.01.

The very difficult situation in which the De Marinis daughters found themselves may have contributed to some extent to their failure to attend to their mail for an extended period of time and to their failure to act promptly even when they finally opened the decision. However, that is not the applicable test. The question is, whether it was beyond the control of the petitioner to have filed the petition on a timely basis. Considering all of the circumstances here, the commission concludes that it was not beyond the control of petitioner to have filed a timely petition in this case.

Assertion That There Was No Notice Of Hearing -- Mama De Marinis Original Recipes, Inc. asserts that it did not receive the notice confirming that an appeal had been filed from the Initial Determination and that it also did not receive the Notice of Hearing for the hearing held before the administrative law judge.

These assertions, even if true, would not excuse the fact that there was not timely action taken to object upon receipt of the administrative law judge's decision. A party who fails to appear at a hearing has the opportunity to file a written explanation for their nonappearance within 21 days after the decision is mailed and if this occurs the administrative law judge has the authority to set aside the decision and conduct further proceedings. Wis. Stat. § 108.09 (4)(d),(e). If Mama De Marinis Original Recipes, Inc. failed to appear at the hearing in this matter because it never received the documents sent to it which would have put it on notice about the hearing, it could have availed itself of this opportunity. It did not do so.

Notwithstanding this, the commission has considered this issue in the interests of ensuring that there has not been any unfairness in the procedures which led to this point. However, having done so, it finds the claim that Mama De Marinis Original Recipes, Inc. did not receive notice of the hearing, to be unpersuasive, for several reasons.

First, the record supports the inference that documents which would have made Mama De Marinis Original Recipes, Inc. aware of the appeal of the Initial Determination, were in fact received by it.

As is noted above, it is undisputed that the correct mailing address for Mama De Marinis Original Recipes, Inc. is:

2457 S. Wentworth Ave.
Milwaukee WI 53207-1923

That is the address to which the department had sent a "Request To Submit Report Of Business Transfer" on October 22, 1996. It is the same address that was shown for the business on the "Report Of Business Transfer" which was filed with the department by the CPA for Mama De Marinis Original Recipes, Inc. on November 13, 1996. It is the same address to which a copy of the Initial Determination finding a business transfer was sent in April, 1998. There is no question, but that the address "worked" at that time, and that Mama De Marinis Original Recipes, Inc. received all of these documents, up to and including the Initial Determination.

This same Wentworth Avenue address was used on both the "Acknowledgment Of Request For Hearing" form which was sent to all parties (including Mama De Marinis Original Recipes, Inc.) on May 28, 1998, after the appeal of the Initial Determination was filed, and on the Notice of Hearing, which was sent to all parties on October 6, 1998.

The same address was used again, when the administrative law judge's decision was sent to all of the parties on January 27, 1999. Of course, it is undisputed that this document was received by Mama De Marinis Original Recipes, Inc. at that address (although it was not opened for several weeks).

Because the same address was used, and because materials sent to that address both before and after the two documents in question (the Acknowledgment of Request For Hearing and the Notice of Hearing) were indisputably received there, this is an appropriate case for invoking the presumption that a letter properly addressed, stamped and mailed will be delivered and received. See, e.g., Cline v. Initial Security (LIRC, May 10, 1999), citing State ex rel. Flores, 183 Wis.2d 587, 612 (1994); Mullen v. Braatz, 179 Wis. 2d 749 (Ct. App. 1993).

A second reason that the commission finds the petitioner's argument about lack of awareness of the hearing unpersuasive, is that it raised this claim much later than one would expect. One would expect that if Mama De Marinis Original Recipes, Inc. had really not received either the Acknowledgment of Request For Hearing or the Notice of Hearing, the receipt of the Appeal Tribunal Decision in 1999 would have come as quite a shock, and the fact that they had not known that an appeal was even pending would have been mentioned in the challenges to the Appeal Tribunal Decision. However, it was not; instead, other explanations were relied on.

In arguments to the Circuit Court where proceedings involving the family were already pending, Mama De Marinis Original Recipes, Inc. acknowleged that it did not respond to the appeal of the Initial Determination, but did not argue that it did not respond to the appeal because it had never found out about it;   rather, it argued that it did not respond to the appeal because of circumstances requiring the two De Marinis daughters to provide constant care for their parents. Also, when Mama De Marinis Original Recipes, Inc. filed its Motion with the Circuit Court on February 22, 1999, a blind P.S. on the copy of the cover letter which was directed to the ALJ repeated the assertion about the reason for the non-appearance at hearing having been the terminal illness of Lucille De Marinis; again, there was no assertion that the failure to respond to the appeal had been caused by lack of knowledge that the appeal had been pending.

In its response to the Motion which Mama De Marinis Original Recipes, Inc. filed with the Circuit Court soon after the administrative law judge's decision was issued, De Marinis Pizza Place, Inc. asserted that both the Acknowledgment of Request For Hearing and the Notice of Hearing had been sent to Mama De Marinis Original Recipes, Inc. One would expect, if Mama De Marinis Original Recipes, Inc. had really never received these documents and had been unaware that they had even been sent, that this assertion would catch its attention. However, in a responsive letter to the Circuit Court of March 1, 1999, Mama De Marinis Original Recipes, Inc. did not make any assertion that the Acknowledgment of Request For Hearing or the Notice of Hearing had not been received. On the contrary, it asserted, "Mama De Marinis was not sent notice of the appeal until May 28, 1998", which seems an implicit acknowledgment that it was sent at that time.

In fact, it was only when Mama De Marinis Original Recipes, Inc. finally filed its papers with the department (seeking a decision by the ALJ to reopen the matter), on May 20, 1999, that there was the first direct assertion that the Acknowledgment of Request For Hearing and the Notice of Hearing had not been received.

A third reason that the commission finds the petitioner's argument about lack of awareness of the hearing unpersuasive, is that it is ambiguous and unconvincing on its face.

The assertion now being made by Mama De Marinis Original Recipes, Inc., that the Acknowledgment of Request For Hearing and the Notice of Hearing were not received by Mama De Marinis, refers to Affidavits of the De Marinis daughters. The Affidavits do contain assertions that the documents "were not received" - but they also contain assertions about how mail directed to De Marinis Pizza Place, Inc. (i.e., the sons' corporation) had been "misdelivered" to the Wentworth location, and how for approximately a year following April, 1996 this "misdelivered" mail for De Marinis Pizza Place, Inc. would be taken unopened to that corporation's offices at another location. These assertions then form the basis for an argument by Mama De Marinis Original Recipes, Inc. that:

It cannot be completely explained why the first two notices were never received by Mama De Marinis at the Wentworth Street Address. However, there was a period of time when there were problems with mail delivery. See Affidavits of RoseMary Latter and Josephine De Marinis.  Frequently, mail was delivered to the Wentworth address for Pizza Place rather than to the Conway Street address just down the street. Id. Any mail received at Wentworth directed to Pizza Place was forwarded to Conway unopened. Id. Dominic and Philip De Marinis were told to change the address for Pizza Place as it was no longer functioning as an active business. Id. It is unknown how Dominic and Philip De Marinis dealt with mail misdelivered to the Conway restaurant.

Additionally, it can be noted that on the Appeal Tribunal Decision that it was addressed and mailed to Mama De Marinis and De Marinis Pizza Place at the Wentworth Address. It is possible that depending on how the address appeared in the window of the envelope that Mama De Marinis was not visible. Rosie and Josie would not open the mail for De Marinis Pizza Place. It is entirely possible that the notices were received by Mama De Marinis but never opened if it appeared to be mail directed to Pizza Place.

Brief in Support of Motion To Reopen, pp. 4-5 (emphasis added).

The commission finds it significant, that in this argument Mama De Marinis Original Recipes, Inc. in effect concedes that the notices may in fact have been received, and instead lays blame on supposed inaccurate addressing by the department which supposedly caused Mama De Marinis Original Recipes, Inc. to think that the letters were for someone else (specifically, De Marinis Pizza Place Inc.).

This argument is unpersuasive. When Mama De Marinis Original Recipes, Inc. filed its Report of Business Transfer, it specifically indicated that it was doing business under the name "De Marinis Pizza Place" - which was the same name as that of the sons' business. Thus, the idea that De Marinis Pizza Place Inc. would routinely turn over anything addressed to their own business name, to the opposing faction in the family, is hard to accept. Also, the "window envelope" theory does not make sense. The department, in order to distinguish between the names of the parties in this matter, was sending documents to either "De Marinis Pizza Place Inc." -- which, by its use of the "Inc." was clearly a reference to the sons' corporation -- or to an address using both "Mama De Marinis Original Recipes Inc." and "De Marinis Pizza Place" -- which, by its reference to "Mama De Marinis Original Recipes Inc.", was clearly petitioner's corporation. The standard window envelopes used for Notices of Hearing would easily have displayed enough lines of the address that mail intended for De Marinis Pizza Place Inc. could have been distinguished from mail for Mama De Marinis Original Recipes Inc. d/b/a De Marinis Pizza Place.

Conclusion -- There are no significant grounds to believe that Mama De Marinis Original Recipes Inc. did not have knowledge of and an opportunity to participate in the proceedings which led to the decision by the administrative law judge. Furthermore, there is no merit to the argument that Mama De Marinis Original Recipes Inc. failed to file its petition for review of that decision for a reason that was "beyond its control". On the contrary, the reasons that the petition was filed late - those reasons being, that the De Marinis' daughters did not open the mail addressed to the business for weeks on end and failed to promptly take action even when they finally opened the decision and saw that the deadline for appeal was that day - were reasons which were within the control of Mama De Marinis Original Recipes Inc.

cc:
Attorney Michael J Woodburn
Attorney Linda M Gogan
Attorney Peter Zeeh


Appealed to Circuit Court.  Affirmed January 7, 2000.

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Footnotes:

(1)( Back ) This is not intended to be a comprehensive description of the developments which led to the situation this case concerns. It is evident from the record that much more was involved. There is substantial dispute between Marinis Pizza Place Inc. and Mama De Marinis Original Recipes, Inc., and the individuals involved with these corporations, as to exactly what occurred, who is at fault, and what the legal consequences are. These disputes are ultimately not relevant to the narrow legal issue before the commission, which is whether the petition for review can be accepted, and for that reason the details of these disputes will not be addressed in any depth.

(2)( Back ) Submission of the matter to the commission was further delayed by the nature of the course followed by counsel for Mama De Marinis Original Recipes, Inc. at this point. That course was to seek a court order, in one of the numerous lawsuits then pending between it and De Marinis Pizza Place Inc., restraining application or enforcement of the ALJ's decision. The application for this order was, quite properly, refused by the court, as it was wholly inconsistent with the statutory scheme for obtaining review of such decisions. Only following this did Mama De Marinis Original Recipes, Inc. file papers with the department, in the form of a "Motion To Reopen And Reverse The Appeal Tribunal Decision", directed not to the commission but to the administrative law judge. This Motion incorrectly invoked the statutory authority of administrative law judges under Wis. Stat. § 108.09 (4)(c) to deal with late appeals from initial determinations. The Motion also invoked the statutory authority of administrative law judges under Wis. Stat. § 108.09 (4)(f)(3) to reopen a final decision of an administrative law judge if there is reason to believe that a party gave false evidence. The department determined that this Motion should be treated as a late attempt to petition for commission review. Subsequent responses from Mama De Marinis Original Recipes, Inc. have made it clear that it does not object to the Motion being redirected to the commission and treated as an attempt at a petition for review.

(3)( Back ) It is not disputed that the De Marinis' apartment was upstairs from the restaurant on Wentworth, which is where the mail was being sent and was delivered.

(4)( Back ) There has been no serious attempt to explain this lapse. In the Affidavits filed by the De Marinis daughters, each simply recites that after the decision was opened on February 17, 1999, "[A]s was the practice of Mama De Marinis, Attorney LaFleur was notified of the decision on February 18, 1999". Petitioner's attorney has asserted to the commission only that "[t]he appeal was brought to the attention of Mama De Marinis attorneys.as soon as it was practical to do so". These explanations are no explanation at all.