IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffery J. Myers, :

Petitioner :

:

v. : No. 94 C.D. 2019 : Submitted: May 24, 2019 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: July 25, 2019

Jeffer y J. Myers (Claimant), pro se , petitions f or review of an order of

the Unemployment Compensation Board of Review (Board), affirming the R eferee’s

decision to dismiss his appeal as untimely. On appeal, Claimant argues that he did

not receive the notices of determination ; therefore, he was unable t o file a timely

appeal

. For the reasons that follow, we affirm.

After his separation from employment, Claimant filed an application

for unemployment compensation benefits. O n May 2, 2017, and May 3, 2017, the

Unemployment Compensation ( U

. C .) S ervice C en ter issued three notices of

determination. The first notice , mailed May 2, 2017, approved unemployment

compensation benefits for Claimant, with the waiting week ending April 22, 2017.

The second and third notices

, mailed on May 3, 2017, assessed a fault overpayment,

six penalty weeks, and a 15 percent penalty because Claimant had failed to report all

earnings. The notices stated that Claimant had 15 days, or until May 17, 2017, and2

May 18, 2017, respectively, to file an appeal. O n May 1 1, 2018, Claimant filed an

appeal

. The appeal was assigned to a R eferee . On June 27, 2018, the R eferee

conducted a hearing on the timeliness of Claimant’s appeal in which Claim ant
participated by telephone.

Claimant confirmed that his home address was correct on each of the

notices of determination

. Nevertheless , Claimant testified that he did not receive

any of the three notices

. Claimant testified :

[t]he only thing that I received was the

– a bill, which prompted me to call and for about a year, I had been trying to get in contact and tried to appeal everything that has been going on. As you can see, there’s a period of time when I email ed . There were period s o f time that I made phone calls.

Notes of Testimony, 6/27/20 18, at 4 (N.T. __). Claimant stated that h e usually

receive s his mail, and he has not filed a complaint with the U.S. Postal S ervice about

his mail being lost

. Id

.

By decision dated June 29, 2018, the R eferee dismissed Claimant’s

appeal as untimely pursuant to Section 501(e) of the Unemployment Compensation

Law (Law). 1 The R eferee found that on May 2, 2017, and May 3, 2017, the U

. C

.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. §821 (e)

. Section 501(e) states that:
[u]nless the claimant

... files an appeal with the board, from the determinatio n 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, a nd 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.
43 P.S. §821 (e)

.3

Service C enter mailed the notices of determination to Claimant’s last known address

, and they were not return ed as undeliverable. The notices stated that an appeal was

due on May 17, 2017, and May 18, 2017, but Claimant appeal ed May 11, 2018,

nearly one year late.

Claimant appealed the R eferee’s decision to the Board , contending that

he never received the U

. C

. Service C enter’s notices of determinatio n . On December

19, 2018, the Board affirmed the R eferee’s decision . The Board adopted the

R eferee’s findings of fact and legal conclusions and did not credit Claimant’s

testimony that he did not receive the notices . Claimant pe titioned for this Court’s

review.

On appeal, 2 Claimant argues that the R eferee and the Board erred. He

contends that the U.S. Postal S ervice loses mail. Moreover, s ince t he notices were

sent by regular mail, and not certified mail, there is no proof that he actually received

the notices

.

Under Section 501(e) of the Law

, a claimant has 15 days to appeal the

U.C. Service C enter ’s notice of determination. 43 P.S. §821(e). T he statutory time

limit for filing an appeal is mandatory. Blast Intermediate Unit No. 17 v.
Unemployment Compensation Board of Review , 645 A.2d 447, 449 (Pa. Cmwlth.

1994). It cannot be extended as a matter of grace or mere indulgence. Constantini

,

2 In unemployment compensation appeals, this Court’s review determines whether constitutional rights were violated, an error of law was committed, or findings of fact are supported by substantial
evidence. Kirkwood v. Unemployment Compensation Board of Revi ew , 525 A.2d 841, 844

- 45 (Pa. Cmwlth. 1987). “Where, as here, however, the burdened party was the only one to present evidence and that party did not prevail below, this Court’s scope of review is limited to determining whether the factfinder capriciously disregarded competent evidence and whether there was a constitutional violation or an error of law.” Constantini v. Unemployment Compensation Board of Review , 173 A.3d 838, 842 n.4 (Pa. Cmwlth. 2017).4

173 A.3d at 844. A claimant has a heavy burden to justify an untimely appeal. Blast

Interme diate Unit No. 17 , 645 A.2d at 449

.

Here, the record shows that the three notices of determination were sent

to Claimant at his correct address

, and n one were returned as undeliverable

. Claimant had until May 17 and 18, 2017, to file an appeal, but he did not appeal until

May 11, 2018

.

T he Board applied the “mailbox rule

, ” which created a rebuttable

presumption that Claima nt received the notices of determination . Th is Court has

explained the mailbox rule as follows:

[t]he common law “mailbox rule” provides that the depositing in the pos t office of a properly addressed letter with prepaid postage raises a natural presumption that the letter reached its desti nation by due course of mail

.... Thus, under the “mailbox rule,” evidence that a letter h as been mailed ordinarily will be sufficient to permit a fact finder to find that the letter was, in fact, received by the party to whom it was addressed

....

Roman

- Hutchinson v. Unemployment Compensation Board of Review , 972 A.2d

1286, 1288 n.3 (Pa. Cmwlth. 2009) ( internal citations omitted). 3

Claimant had the opportuni ty to rebut the presumption that he received

the notice s of determination ; however, the Board rejected his evidence of non

- receipt

as not credible . The Board’s credibility determination is not subject to review by

this Court. See Umedman v. Unemployment Compensation Board of Review , 52

3 Although Claimant argues that the U

. C

. Service Ce nter should have used certified mail, “there is no requirement that the unemployment compensation authorities send a [notice of determination] in any manner other than mail.” Sheller v. Unemployment Compensation Board o f Review (Pa. Cmwlth., No. 1833 C.D. 2017, filed August 16, 2018), slip op. at 4 (unreported). An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 2 10 Pa. Code §69.414(a).5

A.3d 558, 562 (Pa. Cmwlth. 2012) (quoting Procito v. Unemployment Compensation

Board of Review , 945 A.2d 261, 262 n.1 (Pa. Cmwlth. 2008)) ( T he Board “is

empowered to resolve all conflicts in the evidence and to determine the credibility
of witnesses”). Therefore, Claimant failed to rebut the presumption of receipt of the

notice s of determination

. 4

For these reasons, w e conclude that the Board properly d ismissed

Claimant’s appeal as untimely. Accordingly , the Board’s adjudication is affirmed.

_____________________________________ MARY HANNAH LEAVITT, President Judge

4 Additionally, Claimant did not challenge the presumption of the regularity of the U

. C

. Service
Center ’s placement of the notices of determination in the mail. Even if he did raise this issue, he would not have prevailed because the record contains copies of the notices as well as the claim record showing the processing of these documents. Certified Record Item Nos. 1 and 6.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffery J. Myers, :

Petitioner :

:

v. : No. 94 C.D. 2019

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 25 th day of July, 2019, the adjudication of the

Unemployment Compensation Board of Review, dated December 19, 2018, is

AFFIRMED.

_____________________________________ MARY HANNAH LEAVITT, President Judge