Opinion
No. 1928 C.D. 2014
06-29-2015
Joseph L. Evans, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Joseph L. Evans (Claimant) petitions pro se for review of the order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Unemployment Compensation Referee (Referee) finding Claimant's appeal untimely under Section 501(e) of the Pennsylvania Unemployment Compensation Law (Law). Finding no error in the Board's decision, we affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §821(e). Section 501(e) of the Law provides:
Unless the claimant or last employer or base-year employer of the claimant files an appeal with the board, from the determination contained in any notice required to be furnished by the department under section five hundred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to him personally, or 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. (Emphasis added).
Claimant was employed by FedEx Freight, Inc. (Employer) and filed for unemployment compensation benefits upon separation. On July 8, 2013, the Indiana Unemployment Compensation Service Center (Service Center) issued and mailed notices of determination to Claimant denying benefits under Sections 401, 4(u), 404(d), 405(a), 405(b), 405(c) and 405(a)(1) of the Law, finding Claimant to have consistently underreported or failed to report earnings or holiday pay with some underreported earnings being in excess of Claimant's weekly benefit rate plus partial benefit credit. Furthermore, the Service Center found an overpayment in the amount of $6,552.00 when Claimant knowingly failed to report all earnings for which Claimant was to be penalized 27 weeks of benefits. Claimant was also notified that July 24, 2013, was the last day to appeal the determinations. The notices were mailed to Claimant at his last known post office address and there is no evidence that indicates that the notices were returned as undeliverable by the post office. Claimant faxed his appeal on May 7, 2014, and a hearing was scheduled before a Referee on the issue of the timeliness of the appeal under Section 501(e) of the Law.
At the hearing, eight notices of determination on earnings, two notices of determination of overpayment, and a notice of penalty weeks' determination, mailed to Claimant by the Service Center, each with a date of mailing of July 8, 2013, were entered into evidence. Before the Referee, Claimant testified that he had never received any Service Center's notices of determination and, thus, did not appeal or pay back the overpayment. He also testified that he has lived at the same address since 2007 and has had minimum difficulty with improperly delivered mail. Claimant further testified that he only discovered the overpayment after he received a statement of balance due and contacted the Service Center to clarify.
The Referee dismissed Claimant's appeal as untimely under Section 501(e) of the Law. He reasoned that the provisions of Section 501(e) are mandatory and that he had no jurisdiction to allow an appeal filed after the expiration of the statutory period. He explained that Claimant's assertion that he did not receive the Service Center's notices without any corroboration is insufficient to overcome the presumption of receipt. Moreover, the Referee stated that "[C]laimant merely averred that he did not receive the hearing notice but did not corroborate except to state he had not changed his address since 2007. [Claimant] did in fact receive the statement of balance due and Notice of Final Determination at his address." (R. Item. No. 11, at 2.)
Claimant appealed to the Board and the Board issued a decision and order affirming the Referee's dismissal of Claimant's appeal under Section 501(e) of the Law, finding that the provisions of this section of the law are mandatory and that Claimant did not credibly establish proper cause for the late filing of his appeal. This appeal followed.
Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated, or whether the necessary findings of fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of Review, 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 2010). --------
In his appeal, Claimant again contends that he had no knowledge of the notices of determination dated and mailed on July 8, 2013, and the Board erred in dismissing his appeal as untimely.
The 15-day time limit set forth in Section 501(e) of the Law is mandatory and subject to strict application. Vereb v. Unemployment Compensation Board of Review, 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996). However, a nunc pro tunc appeal may be permitted in extraordinary circumstances involving fraud, administrative breakdown or non-negligent conduct either by a third party or by a claimant. Mountain Home Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484, 487 (Pa. Cmwlth. 2008). Merely claiming that a notice was not received, however, is not a sufficient reason for extending the time for appeal. ATM Corporation of America v. Unemployment Compensation Board of Review, 892 A.2d 859, 864 (Pa. Cmwlth. 2006). Where a notice is mailed to a claimant's last known mailing address and is not returned by the postal service authorities as undeliverable, the claimant is presumed to have received the notice and is barred from attempting to appeal after the expiration of the appeal period. Id. (citing Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825, 827 (Pa. Cmwlth. 1979)).
In the instant case, because the Service Center mailed the notices of determination to Claimant at his last known address on July 8, 2013, and the notices were not returned as undeliverable, Claimant is presumed to have received the notices. The only evidence offered to overcome this presumption was Claimant's testimony that he did not receive the notices which the Board found not credible. Without evidence of extraordinary circumstances, the Board properly found that Claimant's appeal was untimely.
Accordingly, the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 29th day of June, 2015, the order of the Unemployment Compensation Board of Review, dated August 25, 2014, at No. B-568538, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
If an appeal is not filed within 15 days of mailing, the determination becomes final and the Board is without jurisdiction to consider the matter. Roman-Hutchinson v. Unemployment Compensation Board of Review, 972 A.2d 1286, 1288 n. 1 (Pa. Cmwlth. 2009).