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

Jeffery J. Myers (Claimant), pro se, petitions for review of an order of 

the Unemployment Compensation Board of Review (Board), affirming the Referee’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 to file a timely 

appeal. For the reasons that follow, we affirm. 

After his separation from employment, Claimant filed an application 

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

Unemployment Compensation (U.C.) Service Center 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, and 
2

May 18, 2017, respectively, to file an appeal. On May 11, 2018, Claimant filed an 

appeal. 

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

conducted a hearing on the timeliness of Claimant’s appeal in which Claimant 

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 emailed. There were 

periods of time that I made phone calls.

Notes of Testimony, 6/27/2018, at 4 (N.T. __). Claimant stated that he usually 

receives his mail, and he has not filed a complaint with the U.S. Postal Service about 

his mail being lost. Id.

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

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

Law (Law).1 The Referee 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 determination 

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, 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.

43 P.S. §821(e).
3

Service Center mailed the notices of determination to Claimant’s last known address, 

and they were not returned as undeliverable. The notices stated that an appeal was 

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

nearly one year late. 

Claimant appealed the Referee’s decision to the Board, contending that 

he never received the U.C. Service Center’s notices of determination. On December 

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

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

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

review. 

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

contends that the U.S. Postal Service loses mail. Moreover, since the 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 Center’s notice of determination. 43 P.S. §821(e). The 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 Review, 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 

Intermediate 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 none 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. 

The Board applied the “mailbox rule,” which created a rebuttable 

presumption that Claimant received the notices of determination. This Court has 

explained the mailbox rule as follows:

[t]he common law “mailbox rule” provides that the depositing in 

the post office of a properly addressed letter with prepaid postage 

raises a natural presumption that the letter reached its destination 

by due course of mail.... Thus, under the “mailbox rule,” 

evidence that a letter has 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 opportunity to rebut the presumption that he received

the notices 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 Center 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 of 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, 210 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)) (The 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 

notices of determination.

4

 

For these reasons, we conclude that the Board properly dismissed 

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 25th day of July, 2019, the adjudication of the 

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

AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge