D.S. Jones v. UCBR

D
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darnell S. Jones,                              :
                              Petitioner       :
                                               :
                 v.                            :   No. 1831 C.D. 2019
                                               :   Submitted: June 19, 2020
Unemployment Compensation                      :
Board of Review,                               :
                    Respondent                 :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: December 29, 2020


       Petitioner Darnell S. Jones (Claimant) petitions, pro se, for review of an order
of the Unemployment Compensation Board of Review (Board), which affirmed a
decision by a Referee, dismissing an appeal as untimely pursuant to
Section 501(e) of the Unemployment Compensation Law (Law).1 We now affirm
the Board’s order.
       Claimant filed for unemployment compensation benefits following the end of
his employment with PNC Bank (Employer). (Certified Record (C.R.), Item No. 1.)
The Scranton UC Service Center (Service Center) mailed a Notice of Determination


       1
            Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§ 821(e).
(Determination), denying Claimant benefits pursuant to Section 402(b) of the Law,2
relating to voluntarily leaving work without cause of a necessitous and compelling
nature. (C.R., Item No. 6.) The final date to appeal the Determination was
September 6, 2019. (Id.) On September 13, 2019, Claimant contacted the Service
Center by telephone and informed the representative that he had not received the
Determination. (C.R., Item No. 1 at 1.) The Service Center representative re-mailed
the Determination.        (Id.)    On September 16, 2019, Claimant appealed the
Determination by email. (C.R., Item No. 7.) A Referee conducted a hearing at which
Claimant and a witness for Employer, Rebecca Andree (Employer’s Witness),
appeared. (C.R., Item No. 10.)
       At the hearing, the Referee first addressed whether Claimant filed a timely
and valid appeal of the Determination. (C.R., Item No. 10 at 5.) As to the timing of
the appeal, Claimant testified that he had lived at his address for more than twenty
years. (Id. at 6.) Claimant stated that he never received the Determination and that
he made multiple attempts to speak with someone at the Service Center by phone
and was eventually told that his Determination would be sent to him again.
(Id. at 5-7.) Further, Claimant explained that he had not had issues receiving mail at
his residence. (Id. at 6.) Claimant testified that he received the copy of the re-mailed
Determination on September 13, 2019. (Id.) When the Referee asked Claimant why
he may not have received the original Determination (as opposed to the re-mailed
Determination), Claimant responded: “I don’t even—I don’t even know because I
kept calling every single day trying to get through, trying to email. I have no idea.”
(Id.) Claimant also provided testimony regarding the merits of his case.

       2
        43 P.S. § 802(b). Section 402(b) of the Law provides that an employee shall be ineligible
for compensation for any week in which his or her unemployment is due to voluntarily leaving
work without cause of a necessitous and compelling nature.

                                               2
      The Referee issued a decision, which dismissed Claimant’s appeal as untimely
pursuant to Section 501(e) of the Law. (C.R., Item No. 11.) In so doing, the Referee
made the following findings of fact:
      1.   The Claimant established an application for unemployment
      compensation (UC) benefits effective July 28, 2019.
      2.      On August 22, 2019, the UC Service Center mailed a Notice of
      Determination to the Claimant’s last known mailing address which
      ruled the Claimant ineligible for UC benefits under Section 402(b) of
      the . . . Law beginning with the waiting week ending August 3, 2019,
      based upon his separation from employment with PNC Bank
      (Employer).
      3.     The Notice of Determination described above included appeal
      instructions which indicated that the final day to file a timely appeal
      was September 6, 2019.
      4.    There is no indication in the hearing record that the Claimant’s
      Notice of Determination was returned by the U.S. postal authorities as
      undeliverable.
      5.     On September 13, 2019, the Claimant contacted the UC Service
      Center by telephone alleging that he had not received any determination
      on his eligibility.
      6.    Later that same [d]ate, the UC Service Center mailed another
      copy of the above Notice of Determination to the Claimant which he
      received within a day or two after which the Claimant filed his appeal
      described below.
      7.    The Claimant’s appeal was filed via electronic transmission
      (“e[]mail”)[,] and the Claimant’s appeal was received by the
      Department on September 16, 2019.

(C.R., Item No. 11 at 1-2.)
      The Referee, in concluding that Claimant’s appeal was untimely, reasoned:
      In the present case, the competent documentary evidence of record
      establishes the UC Service Center mailed an adverse Notice of
      Determination to the Claimant’s last known mailing address as
      described in the findings above and there is no indication in the hearing
      record that said Determination was returned as undeliverable.
      Therefore, the Determination is presumed to have been received.
      The Claimant’s appeal contained in the certified record was untimely.
                                         3
       While the Claimant contended that he never received the Notice of
       Determination dated August 22, 2019, the Claimant admitted to being
       aware of no recent issues involving not receiving his mail and presented
       no competent evidence which would be sufficient to rebut his
       presumption of receipt in accordance with the common law mailbox
       rule.
       As the Referee cannot conclude based upon the competent evidence
       contained in the hearing record that the Claimant filed an appeal on, or
       prior to, September 6, 2019, as the provisions of Section 501(e) of the
       Law are mandatory, the Referee has no jurisdiction under which to
       consider an appeal filed outside the fifteen-day appeal period. Further
       there is no competent evidence in the hearing record to establish that
       the Claimant was prevented from filing a timely appeal due to fraud,
       a breakdown in the administrative process, or due to non-negligent
       conduct on his part.
       As such, while the Referee sympathizes with the Claimant’s
       circumstances, the Referee has no jurisdiction in this case to consider
       or address the merits of the Claimant’s appeal and the Referee is
       constrained to dismiss the Claimant’s appeal as untimely under
       Section 501(e) of the . . . Law.
(Id. at 3.)

       Claimant appealed to the Board, and the Board issued an order, adopting and
incorporating the Referee’s findings of fact and conclusions of law and affirming the
Referee’s decision. (C.R., Item No. 14.) Claimant now petitions this Court for
review.
       On appeal,3 Claimant essentially argues that the Board erred in affirming the
Referee’s decision that he is not entitled to nunc pro tunc relief. Claimant argues
that he is entitled to nunc pro tunc relief because he did not receive the Determination
in the mail due to fraud or a breakdown in the administrative process. The Board
argues that Claimant’s mere assertion that he did not receive the Determination is


       3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               4
simply not enough to overcome the presumption of receipt and that Claimant has
failed to prove fraud or a breakdown in the administrative process or non-negligent
conduct which led to his late appeal.
      Section 501(e) of the Law provides:
      Unless the claimant . . . files an appeal with the [B]oard, from the
      determination contained in any notice required to be furnished by the
      department . . . within fifteen calendar days after such notice . . . was
      mailed to his last known post office address, and applies for a hearing,
      such determination of the department, with respect to the particular
      facts set forth in such notice, shall be final and compensation shall be
      paid or denied in accordance therewith.

Pennsylvania courts have consistently held that the fifteen-day appeal period under
Section 501(e) is mandatory and subject to strict application. Lin v. Unemployment
Comp. Bd. of Rev., 

735 A.2d 697

, 699 (Pa. 1999). If an appeal from a local service
center determination is not filed within fifteen days of mailing, the determination
becomes final and the Board does not have the requisite jurisdiction to consider the
matter.

Id. “Appeal periods, even

at the administrative level, are jurisdictional and
may not be extended as a matter of grace or indulgence,” and even an “appeal filed
one day after the expiration of the statutory appeal period must be dismissed as
untimely.” Dumberth v. Unemployment Comp. Bd. of Rev., 

837 A.2d 678

, 681 (Pa.
Cmwlth. 2003).
      Nevertheless, an untimely appeal, i.e., an appeal nunc pro tunc, may be
allowed in limited circumstances. Hessou v. Unemployment Comp. Bd. of Rev.,

942 A.2d 194

, 198 (Pa. Cmwlth. 2008). The burden to establish the right to a
nunc pro tunc appeal, however, is a “heavy one because the statutory time limit
established for appeals is mandatory.”

Id. A petitioner may

only satisfy this heavy
burden by demonstrating either (1) “the administrative authority engaged in


                                         5
fraudulent behavior or manifestly wrongful or negligent conduct[;]”4 or
(2) “non-negligent conduct beyond his control caused the delay.”

Id. Thus, “[f]ailure to

file an appeal within fifteen days, without an adequate excuse for the
late filing, mandates dismissal of the appeal.”

Id. If there is

evidence in the record that a determination was made and mailed to
the party’s last known address and the determination was not returned as
undeliverable, courts will presume that the determination was received. Dull v.
Unemployment Comp. Bd. of Rev., 

955 A.2d 1077

, 1079 (Pa. Cmwlth. 2008).
Simply stating that a notice was not received is not a sufficient reason for extending
the time for filing an appeal. ATM Corp. of Am. v. Unemployment Comp. Bd. of
Rev., 

892 A.2d 859

, 864 (Pa. Cmwlth. 2006).               In Douglas v. Unemployment
Compensation Board of Review, 

151 A.3d 1188

, 1192 (Pa. Cmwlth. 2016), we
explained:
       [There are] two component presumptions, both rebuttable, that arise
       when a party challenges a public official’s claim to have placed an order
       in the mail: (1) the presumption of the regularity of the acts of public
       officials (which is used to establish that a public official placed an item
       into the mail); and (2) the presumption of receipt (i.e., that a properly
       mailed letter to the last known address of the addressee which is not
       returned undelivered by the postal authorities was timely received by
       the addressee—i.e., the mailbox rule). . . . [T]he two presumptions are
       applied separately[,] and . . . there must be some evidence to support
       the first presumption before the second presumption may be applied.

Id. In other words,

“the presumption of receipt is ‘inapplicable’ in the
       absence of proof that the notice was mailed. ‘[U]ntil there is proof that
       a letter was mailed, there can be no presumption that it was received.’”

Douglas, 151 A.3d at 1192

(citations omitted) (alterations added and in original).


       4
         A so-called “administrative breakdown” occurs where the “administrative board or body
is negligent, acts improperly or unintentionally misleads a party.” Duhigg v. Unemployment
Comp. Bd. of Rev., 

181 A.3d 1

, 4 (Pa. Cmwlth. 2017).

                                              6
      The record indicates that the Determination was mailed on August 22, 2019.
(C.R., Item Nos. 1, 6.) The Board cites to two entries in the claim record, titled
“IE 402B V/Q HLTH W/CAUSE CLMNT, PNC” and “DET=IE 402B V/Q HLTH
W/O CAUSE WWR 190803 CLMNT, PNC” to show that the Determination was
mailed out on August 22, 2019. (C.R., Item No. 1 at 1, 3.) Claimant does not dispute
the Board’s reliance on these entries in the record showing the Service Center did
mail the Determination on August 22, 2019. Rather, Claimant insists that he
“called numerous times” before reaching a Service Center representative.
(Claimant’s Brief at 9.) The record only reflects, however, that Claimant contacted
the Service Center on September 13, 2019. (C.R., Item No. 1.) Claimant did not
offer any evidence at the hearing that he contacted or attempted to contact the
Service Center prior to September 6, 2019—the deadline for filing the appeal. It is
also important to note that Claimant did not argue that the Department never sent the
Determination. When the Referee asked Claimant why he did not receive the
Determination, Claimant simply said he did not know. (C.R., Item No. 10 at 6-7.)
When asked if he received the re-mailed Determination, he stated he did. (Id. at 7.)
Claimant testified that he had lived at his address for more than twenty years, and
there is no record indicating that the Determination was returned as undeliverable.
(C.R., Item Nos. 6, 10 at 6-7.)
      Based upon the above, the evidence in the record demonstrates that the
Service Center mailed the Determination to Claimant’s last known address, the
Determination was not returned as undeliverable, and Claimant has not offered any
evidence to overcome the presumption of regularity of the acts of public officials,
nor does he dispute the evidence establishing that the Determination was mailed on




                                         7
August 22, 2019.5        Thus, there is a presumption that Claimant received the
Determination. See Dull.
       Claimant has not argued in his brief or testified to any indication that fraud,
administrative breakdown, or some other non-negligent conduct beyond his control
caused the delay. Claimant did not assert that some irregularity in the mail caused
non-receipt, nor has Claimant shown any evidence indicating that the Department
simply did not mail the Determination or cause it to not be delivered in some way.
Claimant has also not shown any recent problems with receipt of his mail.
Claimant’s mere assertion that he did not receive the Determination is not enough to
overcome the heavy burden establishing a right to nunc pro tunc relief. See Hessou.
Claimant’s appeal by email on September 16, 2019, therefore, was untimely, and the
Board did not err in affirming the Referee’s decision.
       Accordingly, the order of the Board is affirmed.6




                                               P. KEVIN BROBSON, Judge




       5
          The presumption that the notice was mailed is satisfied by some indication that the act
had been performed, such as “a notation to that effect made by a local bureau official” that the
letter had been deposited in the mail. Mileski v. Unemployment Comp. Bd. of 

Rev., 379 A.2d at 643

, 645 (Pa. Cmwlth. 1977).
       6
         We do not reach Claimant’s argument on the merits of the appeal, because Claimant failed
to prove he is entitled to nunc pro tunc relief.

                                               8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darnell S. Jones,                     :
                       Petitioner     :
                                      :
            v.                        :   No. 1831 C.D. 2019
                                      :
Unemployment Compensation             :
Board of Review,                      :
                    Respondent        :



                                    ORDER


      AND NOW, this 29th day of December, 2020, the order of the Unemployment
Compensation Board of Review is AFFIRMED.




                                      P. KEVIN BROBSON, Judge

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