N. I. Lex v. UCBR ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nadine I. Lex, :
Petitioner :
:
v. : No. 986 C.D. 2015
: Submitted: October 2, 2015
Unemployment Compensation :
Board of Review, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 23, 2015
Nadine I. Lex (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).1 Finding no error in the Board’s decision, we affirm.
1
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
(Footnote continued on next page…)
Claimant was employed by The Hershey Company (Employer) and
filed for unemployment compensation benefits upon separation, effective
December 28, 2014. On December 30, 2014, Claimant updated her address with
the Pennsylvania Department of Labor and Industry (Department).2 On February
2, 2015, the Scranton Unemployment Compensation Service Center (Service
Center) mailed Claimant by first-class mail its determination disqualifying her
from benefits because she had not registered for employment search services at
www.jobgateway.pa.gov. This determination was sent to the updated address and
notified Claimant that the final day to file a valid appeal of the determination was
February 17, 2015. The mailing was not returned as undeliverable.
On March 2, 2015, Claimant appealed to the Referee and a hearing
was ordered to determine whether the appeal was timely. Before the Referee,
(continued…)
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).
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).
2
We note, though, that on January 19, 2015, Claimant received a warning letter at her old
address that if she did not register on the www.jobgateway.pa.gov website that she would be
disqualified from benefits beginning the week ending January 31, 2015. All other notices were
sent to her updated address.
2
Claimant testified that her untimely appeal was due to her not having received the
Service Center’s determination. Claimant testified that she lived at her address on
record for five years and had not had any other difficulty with receiving her mail.
She further testified that she only found out about her disqualification from
benefits when she went to file her claim online sometime in January 2015.
The Referee dismissed Claimant’s appeal as untimely because it was
filed more than 15 days as provided for in Section 501(e), which is mandatory, and
he had no jurisdiction to hear an appeal filed after the expiration of the statutory
period. Claimant appealed to the Board which affirmed the Referee’s dismissal of
Claimant’s appeal, finding that the Service Center’s determination was mailed to
Claimant’s correct address and not returned as undeliverable, so it is presumed that
Claimant received the determination, which discredits her assertions. This appeal
followed.3
In her appeal, Claimant again argues that she did not receive the
Service Center’s determination mailed to her and that there was no proof of
delivery. 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
3
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).
3
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)).
Here, because the Service Center mailed the notice of determination
to Claimant at her current address, where she has lived for the past five years, and
the notice was not returned as undeliverable, Claimant is presumed to have
received the notice. The only evidence offered to overcome this presumption was
Claimant’s testimony that she did not receive the notice, which the Board found
incredible. Without evidence of extraordinary circumstances, the Board properly
found that Claimant’s appeal was untimely.
Accordingly, the order of the Board is affirmed.
_________________________________
DAN PELLEGRINI, President Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nadine I. Lex, :
Petitioner :
:
v. : No. 986 C.D. 2015
:
Unemployment Compensation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 23rd day of October, 2015, the order of the
Unemployment Compensation Board of Review, dated May 6, 2015, at No. B-
578151, is affirmed.
_________________________________
DAN PELLEGRINI, President Judge