Opinion
Argued December 7, 1978
May 3, 1979.
Unemployment compensation — Timeliness of appeal — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Notice of decision — Credibility — Weight of evidence — Receipt of notice.
1. Appeals from decisions of the Bureau of Employment Security are properly dismissed by the Unemployment Compensation Board of Review when not filed within the time provided by the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [413]
2. A presumption exists that a notice of a decision of the Bureau of Employment Security has been timely received when the decision bearing notice of the appeal expiration date was properly addressed and mailed and was not returned by postal authorities. [414]
3. In an unemployment compensation case questions of evidentiary weight and credibility are for the referee and the Unemployment Compensation Board of Review, which may disbelieve the testimony of a claimant on the question of his receipt of a notice of decision particularly when the claimant first denied receipt of the notice and subsequently testified that he received the notice belatedly. [414]
Argued December 7, 1978, before Judges CRUMLISH, JR., MENCER and CRAIG, sitting as a panel of three.
Appeal, No. 1154 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert Johnson, No. B-144899.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal dismissed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert Johnson, petitioner, for himself.
William J. Kennedy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.
This is a pro se appeal by claimant Robert Johnson from a decision of the Unemployment Compensation Board of Review (Board) dismissing his appeal from the Bureau of Employment Security's determination denying him benefits, on the ground that the Bureau's determination had become final, under the provisions of Section 501(e) of the Unemployment Compensation Law.
Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 821(e).
Claimant's justification for filing his appeal late is that the notice of determination arrived after the time for appeal had passed.
The presumption is that the notice has been timely received where the decision, bearing notice of the appeal expiration date, was properly addressed and has not been returned by the postal authorities. Devito Unemployment Compensation Case, 199 Pa. Super. 606, 186 A.2d 639 (1962).
The Board found in this case that on the date of the decision, October 25, 1976, a copy was mailed to claimant at his last known address. The copy contained the notice that the order would become final, in the absence of an appeal, on November 9, 1976.
The Board found that claimant waited until November 12, 1976 before filing an appeal. At the hearing in December, 1976 before the referee, claimant clearly and repeatedly denied having received any notice in the mail. Claimant testified that not until November 12 was he informed, by authorities at the local office, of the Bureau's decision denying him compensation. He further testified that he filed an appeal within an hour of learning of the decision.
Claimant now claims, however, that he did in fact receive the notification in the mail on November 15, 1976, six days after the final date for appeal had passed, and that the notice arrived in a condition which would indicate that it had been mismanaged in the mailing process by postal or compensation authorities.
The credibility of the witnesses and the weight to be afforded the evidence are matters for the referee and the Board. The Board chose to disbelieve claimant's testimony, and we do not find that the Board capriciously disregarded competent evidence. Unemployment Compensation Board of Review v. De Victoria, 24 Pa. Commw. 143, 147, 353 A.2d 920, 922 (1976).
Indeed, the discrepancy between claimant's testimony denying receipt of the notice, and his present claim of receiving the determination, but after the appeal date had passed, seems to confirm the Board's conclusion as to claimant's credibility.
Accordingly, we enter the following
ORDER
AND NOW, this 3rd day of May, 1979, the order of the Unemployment Compensation Board of Review, dated May 5, 1977, dismissing the appeal of Robert Johnson, is affirmed.