Opinion
1278 C.D. 2020
10-06-2021
Margaret A. Alexander, Petitioner v. Unemployment Compensation Board of Review, Respondent
OPINION NOT REPORTED
Submitted: July 16, 2021.
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
ANNE E. COVEY, Judge
Margaret A. Alexander (Claimant) petitions this Court, pro se, for review of the Unemployment Compensation (UC) Board of Review's (UCBR) November 13, 2020 order that vacated the Referee's decision and dismissed Claimant's appeal under Section 501(e) of the UC Law (Law). The sole issue before this Court is whether the UCBR properly dismissed Claimant's appeal as untimely. After review, this Court affirms.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. § 821(e).
On July 9, 2020, the Erie UC Service Center issued a Notice of Determination (Determination) that denied UC benefits to Claimant. The Determination informed Claimant that July 24, 2020, was the last day on which to file an appeal from the Determination. Claimant electronically filed an appeal on August 26, 2020. The Referee held a hearing on September 17, 2020. On September 24, 2020, the Referee reversed the UC Service Center's Determination, and granted Claimant UC benefits. Alliance Cancer Specialist (Employer) appealed to the UCBR. On November 13, 2020, the UCBR vacated the Referee's decision and dismissed Claimant's appeal as untimely. Claimant appealed to this Court.
"'Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by substantial evidence.' Miller v. Unemployment Comp. Bd. of Rev., 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014)." Talty v. Unemployment Comp. Bd. of Rev., 197 A.3d 842, 843 n.4 (Pa. Cmwlth. 2018).
Initially, Section 501(e) of the Law provides:
Unless the claimant . . . files an appeal with the [UCBR], from the determination contained in any notice required to be furnished by the [Department of Labor and Industry (Department)] under [S]ection [501](a), (c) and (d), [of the Law] 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 [D]epartment, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance therewith.43 P.S. § 821(e).
The law is well established:
Failure to file a timely appeal as required by Section 501(e) of the Law is a jurisdictional defect. The time limit for a statutory appeal is mandatory; it may not be extended as a matter of grace or indulgence. To justify an exception to the appeal deadline, [a c]laimant must demonstrate that h[er] delay resulted from extraordinary circumstances involving fraud, a breakdown in the administrative process, or non-negligent circumstances relating to [the c]laimant h[er]self. This is an extremely heavy burden.Carney v. Unemployment Comp. Bd. of Rev., 181 A.3d 1286, 1288 (Pa. Cmwlth. 2018) (citations omitted).
Here, Claimant testified:
R[eferee] All right, documents come into the record. Let's get to this first issue of the timing of the [a]ppeal. Now, the Determination was sent to you on July 9[, 2020]. It indicates the final day to timely appeal [was] July 24 of [20]20. . . . You submitted your [a]ppeal on August 26 of [20]20, more than a month later. Why is it that you waited until August 26[, 2020, ] to file the [a]ppeal?
C[laimant] I actually did not. I sent my initial [a]ppeal on the 22nd of July, but was not informed that it was never received. And so, I was told to follow through with resubmittal of the [a]ppeal; so, I did so on that later date.
R[eferee] Okay. When you say you sent in your [a]ppeal, how did you send it in?
C[laimant] I did fax it to the number that was listed for the office that I was supposed to be responding to. I also sent it by postal mail.
R[eferee] I didn't see any record of either of those in the hearing file. Did you provide any documentation to support your testimony that you sent in the [a]ppeal in July?
C[laimant] No, I did not.
R[eferee] Why not?
C[laimant] Well, I did not have any sort of confirmation as far as sending it by postal mail, and I neglected to send in the confirmation of the fax sent, too, on that date.
R[eferee] [Claimant], I'm going to do something extraordinary, and that is I'm going to keep the record open until close of business today so that you can transmit a copy of that fax transmittal report showing that it was successfully sent on July 22nd. Can you get that to me today?
C[laimant] I will do everything in my nature to do that, yes.
R[eferee] All right. I'll give you until tomorrow at 3:30. That's when I close up shop. But you have a fax transmittal confirmation showing it was sent to the correct address and that the transmission was successful, correct?
C[laimant] Yes, I do.
R[eferee] All right. When you sent it by U[nited] S[tates] [m]ail, how did you send it? Regular [m]ail?
C[laimant] Yes.
R[eferee] Did you just drop it in a mailbox?
C[laimant] I did.
R[eferee] So -- and you didn't buy the stamp that same day, correct?
C[laimant] No, I did not.
R[eferee] Right. All right. Anything else on the issue of timing?
C[laimant] No. I thought I was handling it in a timely manner. . . .
Certified Record (C.R.) at 144-45 (emphasis added).
Claimant emailed the Referee at 2:11 p.m. that same day, stating, in relevant part: "After our discussion during the hearing this morning I immediately checks [sic] my records for the proof you had requested for my initial petition for an appeal. I do not have an accurate form of verification of my initial petition that has more validity than my verbal word." C.R. at 155 (emphasis added).
Concluding that Claimant's testimony surrounding the circumstances of her appeal filing was credible, the Referee accepted her appeal nunc pro tunc, and ultimately reversed the UC Service Center's Determination. However, "in UC cases, 'it is well[ ]settled that the [UCBR] is the ultimate fact[-]finder and is, therefore, entitled to make its own determinations as to witness credibility and evidentiary weight.' Serrano v. Unemployment Comp[.] [Bd.] of Rev[.], 149 A.3d 435, 439 (Pa. Cmwlth. 2016)[.]" Cambria Cnty. Transit Auth. ("CamTran") v. Unemployment Comp. Bd. of Rev., 201 A.3d 941, 947 (Pa. Cmwlth. 2019). Further, "[t]he UCBR, as fact-finder, is not bound by the [R]eferee's credibility determinations and can reverse the [R]eferee's decision as long as its reasons for reversal are plain from the record and adequate to permit effective judicial review." Cumberland Valley Animal Shelter v. Unemployment Comp. Bd. of Rev., 881 A.2d 10, 13 n.4 (Pa. Cmwlth. 2005).
Here, the UCBR opined:
[Claimant did not produce a fax coversheet showing a successful transmission of an appeal to the Department on July 22, 2020, nor did she produce an envelope with a postmark date, a certificate of mailing, or a certified mail receipt to evidence that she filed an appeal on July 22, 2020. Further, while [] [Claimant testified that she faxed her appeal to the number listed on the [Determination, there is no documentary evidence to corroborate her assertion. There is also no documentary evidence that she mailed an appeal to the Department at its correct address. The [UCBR] does not credit [] [Claimant's testimony that she filed an appeal prior to the deadline.
C.R. at 176 (emphasis added).
The UCBR concluded:
The provisions of [Section 501(e)] of the Law are mandatory; the [UCBR] and its [R]eferees have no jurisdiction to allow an appeal filed after the expiration of the statutory appeal period absent limited exceptions not relevant herein. The filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or by non-negligent conduct. Therefore, the Referee's conclusion that an appeal nunc pro tunc is warranted in this case is reversed.
C.R. at 176. The UCBR accurately stated the law and based on the evidence before the UCBR, it properly dismissed Claimant's appeal as untimely.
For all of the above reasons, the UCBR's order is affirmed.
ORDER
AND NOW, this 6th day of October, 2021, the Unemployment Compensation Board of Review's November 13, 2020 order is affirmed.