Opinion
No. 1927 C.D. 2014
04-23-2015
Brian White, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Brian White (Claimant) challenges the order of the Unemployment Compensation Board of Review that dismissed as untimely under Section 502 of the Unemployment Compensation Law (Law) Claimant's appeal from the referee's decision that found him financially ineligible for benefits under Section 404 of the Law, 43 P.S. §804.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §822.
The facts, as found by the Board, are as follows:
1. In late April 2014, the claimant left Pennsylvania to seek work, but an individual remained at his home to check his mail.
2. On May 1, 2014, a referee mailed to the claimant's last known address a decision and order concluding that
the claimant was financially ineligible for unemployment compensation benefits.Board Opinion, September 3, 2014, Findings of Fact Nos. 1-6 at 1.
3. The postal authorities never returned as undeliverable the decision and order mailed to the claimant.
4. The decision and order notified the claimant that May 16, 2014, was the final day to file a valid appeal to the Unemployment Compensation Board of Review.
5. The claimant's appeal was filed on June 17, 2014.
6. The unemployment compensation authorities never misinformed or misled the claimant concerning the right or necessity to appeal.
The Board determined:
Here, the final day to file an appeal from the referee's decision and order was May 16, 2014. However, the claimant failed to file an appeal until June 17, 2014.Opinion at 1-2.
. . . . Here, the claimant asserts that he did not receive the decision and order, but admitted that he was not home at the time to receive it. The decision and order was mailed to the claimant's last known address and not returned as undeliverable, so receipt is presumed. Therefore, the Board discredits the claimant's assertion of nonreceipt and concludes that his appeal from the referee's decision and order must be dismissed.
Claimant contends that the Board erred when it determined that his appeal from the referee's decision was not timely filed.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994).
Claimant asserts that he never received the referee's May 1, 2014, decision at his address at 4117 Garrett Road, Drexel Hill, Pennsylvania 19026. As a result, he was unable to timely appeal by May 16, 2014. Claimant also asserts that when he wrote the Board on June 17, 2014, to inquire about how he might proceed after he learned that a hearing was held in his absence where the referee determined that he was not eligible for benefits, the Board treated that correspondence as an untimely appeal.
Section 502 of the Law, 43 P.S. §822, provides that a party has fifteen days to appeal the decision of the referee to the Board. The Board's regulation, 34 Pa.Code §101.82, provides that a party seeking to appeal an unemployment compensation determination shall file an appeal on or before the fifteenth day after the date on which notification of the decision was delivered personally or mailed to the party at his last known postal address.
This Court has held that where a notice is mailed to a claimant's last known address, and not returned by the post office as undeliverable, the claimant is presumed to have received it and is barred from attempting to appeal after the expiration of the appeal period. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825 (Pa. Cmwlth. 1979).
In Mihelic, this Court actually addressed the issue of the timeliness of an appeal from the Unemployment Compensation Service Center to the referee under Section 501(e) of the Law, 43 P.S. §821(e). The same reasoning applies here.
This Court has also held that the statutory time limit established for appeals is mandatory. The appeal period may be extended beyond the statutory limit only where the appellant establishes that there was fraud or manifestly wrongful or negligent conduct on the part of the administrative authorities. An appellant carries a heavy burden to justify an untimely appeal. Blast Intermediate Unit #17 v. Unemployment Compensation Board of Review, 645 A.2d 447 (Pa. Cmwlth. 1994). Absent fraud, there is a presumption of regularity of the administrative authorities. Cameron v. Unemployment Compensation Board of Review, 430 A.2d 396 (Pa. Cmwlth. 1981). This Court has also permitted the filing of untimely appeals if the delay was beyond the control of the appellant or his attorney. See Perry v. Unemployment Compensation Board of Review, 459 A.2d 1342 (Pa. Cmwlth. 1983).
Here, it is undisputed that on May 1, 2014, the referee issued a decision which determined that Claimant was financially ineligible for unemployment benefits. The Board found that a copy of the decision was mailed to Claimant's last known address and was not returned as undeliverable. Regarding whether he received the decision, Claimant testified, "No, I did not." Notes of Testimony, August 14, 2014, (N.T.) at 2. Although Claimant left his home address to look for work in late April 2014, he testified that he did not have his mail forwarded. However, someone checked his mail at the home address and contacted him if he received mail. N.T. at 2-3.
The Board did not find Claimant credible. In unemployment compensation proceedings the Board is the ultimate fact-finding body empowered to resolve conflicts in evidence, to determine the credibility of witnesses, and to determine the weight to be accorded evidence. Unemployment Compensation Board of Review v. Wright, 347 A.2d 328 (Pa. Cmwlth. 1975). Findings of fact are conclusive upon review provided that the record, taken as a whole, provides substantial evidence to support the findings. Taylor v. Unemployment Compensation Board of Review, 378 A.2d 829 (Pa. 1977).
Claimant had fifteen days to appeal the referee's order. The last day to timely appeal was May 16, 2014. Claimant did not file his appeal until June 17, 2014. The Board did not err when it determined Claimant's appeal was untimely.
Claimant also contends that the referee erred when it was determined that Claimant was not eligible to receive benefits, that the referee neglected to include his wages earned in another state when it was determined Claimant was not financially eligible, and that the referee erred when it was determined Claimant's request for a continuance was unacceptable. These issues go either to the merits of whether he was ineligible for unemployment compensation benefits or to the procedures before the referee, and not whether the appeal was timely. This Court need not address them. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 23rd day of April, 2015, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge