IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerardo Mejia

, : Petitioner :

:

v. :

: Unemployment Compensation : Boa rd of Review

, : No. 740 C.D. 2015 Re spondent : Submitted : January 22 , 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRE R, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: May 12, 2016

Gerardo Me

j ia (Claimant) petitions this Court pro se for r eview of the

Unemployment Compensation (UC) Board of R eview’ s (UCBR) March 26, 201 5

order affirming the Referee’s decision dismissing Claimant’s appeal under Section

501(e) of the UC Law. 1 Essentially, the issue before the Court is whether the UCBR

erred by dismissing Claimant’s a ppeal as untimely. 2 After review, we affirm.

Claimant applied for UC benefits on April 13, 2014. On April 18, 2014,

the Allentown UC Service Center issued a Notice of Financial Information ( original

Notice) indicating that Claimant was not financially e ligible for UC benefits. See

Certified Record (C.R.) Item No. 7. Claimant questioned the original Notice and

, as

a result

, by April 22, 2014 letter, the UC Service Center vacated the original Notice

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

2 Claimant raised three issues, all of which concerned the merits of the underlying decision. Given our disposi tion of the timeliness issue, we do not reach those issues.2

and initiated a further investigation into the matter. The April 22, 2014 letter

expressly advised Claimant : “Follo wing this investigation, a [new Notice] will be

issued to you. You have the right to appeal if you disagree with the [ new Notice].

Any appeal must be submitted in writing to the UC Service Cent er within the

designated fifteen

- day appeal period .” C.R. Item No. 7 (emphasis added)

. On May

9, 2014

, the UC Service Center issued a new Notice indicating that Claimant did have

the qualifying wages and 18 weeks of credit to entitle him to UC benefits i n the
amount of $568.00 per week. The new Notice expressly provided that “ [t]he last day

to timely appeal this determination is: May 27, 2014 .” C.R. Item No. 7 (emphasis in

original). Claimant appealed from the new Notice on December 11, 2014 claiming

h e had more than 18 weeks of credit . A Referee hearing was held and

, on February

11, 2015, the Referee dismissed Claimant’s appeal as untimely pursuant to Section

501(e) of the Law

. Claimant appealed to the UCBR. On March 26, 2015, the UCBR

affirmed the Referee’s decision and adopted and incorporated the Referee’s findings

and conclusions. On April 6, 2015, Claimant filed a Request for Reconsideration

(Reconsideration). On April 27, 2015, the Board denied the Reconsideration.

Claimant appealed to this Court. 3

Although not specifically referenced in Claimant’s brief, we can

reasonably infer that he is arguing that : (1) the Referee ’s F indings of F act 5 and 6 are

not supported by substantial evidence ; and (2) the record does not contain any

3 By April 21, 2015 Notice, this Court preserved April 16, 2015 as the date Claimant filed
his appeal based on “communication [received by the Court] indicating [Claimant’s] intention to appeal” f rom the UCBR’s order. April 21, 2015 Notice at 1. “Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact were unsupported by
substantial evidence. ” Miller v. Unemployment Comp. Bd. of Review , 83 A.3d 484, 486 n.2 (Pa. Cmwlth. 2014).3

evidence to s upport the UCBR’s inference that Claimant’s claim was investigated and

a new determination was produced

. 4

Initially,

Section 501(e) of the Law,

. . . provides that an appeal from the UC Service Center ’ s notice of eligibility determination must be filed ‘w ithin fifteen calendar days after such notice was delivered to him [or her] personally, or was mailed to his [or her] last known post office address.’

Russo v. Unemployment Comp. Bd. of Review , 13 A.3d 1000, 1002 (Pa. Cmwlth.

2010). “ Failure to timely app eal an administrative agency’s decision constitutes a

jurisdictional defect. ” Id. “ The appeal provisions of the law are mandatory: failure

to file an appeal within fifteen days, without an adequate excuse for the late filing,

mandates dismissal of the ap peal. ” Dumberth v. Unemployment Comp. Bd. of

Review , 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (quoting U

. S

. Postal Serv. v.

Unemployment Comp. Bd. of Review, 620 A.2d 572, 573 ( Pa. Cmwlth. 1993) ).

If an appeal is not filed within fifteen days of the mailing of the determination, it becomes final, and the [UCBR] does not have the requisite jurisdiction to consider the matter. Appeal periods

, even at the administrative level, are jurisdictional and may not be extended as a matter of grace or indulgence; other wise, there would be no finality to judicial action. Therefore, an appeal filed one day after the expiration of the statutory appeal period must be dismissed as untimely.

Dumberth

, 837 A.2d at 681 (citations omitted). Here

, because Claimant’s appeal was

not filed until December 11, 2014, over five months after the May 27, 20 1 4 deadline,

it was clearly untimely.

4 In Claimant’s brief, under the section titled Order in Question, Claimant cites to the UCBR’s Order denying his Reconsideration. See Claimant Br. at 4. Because this is the only reference to said order, we will address only the above issues in relation to the UCBR’s March 26,
2015 order that affirmed the Referee’s decision and dismissed Claimant’s appeal

.4 Claimant argues that Findings of Fa ct 5 and 6 are not supported by

substantial evidence. This Court has explained:

Substantial evidence is rel evant evidence upon which a reasonable mind could base a conclusion. In deciding whether there is substantial evidence to support the [UCBR’s] findings, this Court must examine the testimony in the light most favorable to the prevailing party

, . . . givin g that party the benefit of any inferences which can logically and reasonably be drawn from the evidence.

Sanders v. Unemployment Comp. Bd. of Review , 739 A.2d 616, 618 (Pa. Cmwlth.

1999).

Finding of Fact 5 state s :

[C]laimant delayed the filing of this ap peal because he had returned back to work for a period of time, and decided to file the late appeal because of his belief there should be

mor e than eighteen (18) credit weeks included within his base year on this [sic] Application of Benefits.

Referee Dec. at 2. The new Notice was dated May 9, 2014. At the Referee h earing,

Claimant testified that he ha d been working for Sprinturf (Employer) since he opened

his UC claim. C.R. Item No. 5, Notes of Testimony, February 11, 2015 (N.T.) at 4.

Claimant further testified that “[t]he majority of the job is from May, June, July, late

September, October.” N.T. at 6. In addition, Claimant’s fax cover page for his

Petition for Appeal contained the description “late appeal” in the comment section.

C.R. Item No. 2 a t 3. Moreover, in his Petition for Appeal , Claimant assert ed that

“th e re is [sic] some cre di t weeks missing from some quarters.” C.R. Item No. 2 at 4.

Finally, although the Referee asked Claimant numerous times why he filed his appeal

late, Claimant nev er answered the question. Rather, he continued to refer to the

merits of the case. See N.T. at 6

- 9. Indeed, because of his refusal to answer the

question, the Referee discontinued the hearing. N.T. at 10. Thus, Claimant’s

testimon y and the documentary evidence support Finding of Fact 5.5 Finding of Fact 6 states: “[C]laimant was not misinformed nor in any

way misled regarding the right to appeal or the need to appeal.” Referee Dec. at 2.

Claimant was advised by April 22, 2014 letter that a new Notic e w ould be issued

, and

that he had the right to appeal if he disagree d with the new Notice. The April 22,

2014 letter further advised that a ny appeal had to be submitted in writing to the UC

Service Center within the designated fifteen

- day appeal period. C.R. Item No. 7.

The new Notice expressly provided that th e last day to appeal was May 27, 2014

.
C.R. Item No. 7

. Accordingly, Finding of F act 6 is also supported by substantial

evidence.

Moreover, Claimant admits in his brief:

Instead, [Claimant] was advi[s]e[d] several times by [UC] representatives to file an appeal to add them to claim. [Claimant] originally declined advice as he saw that there [was] no reason for [him] to submit to the stresses [an] appeal might present for an intentional error on UC monitoring part [sic] of not being able to conclude[] its investigation. [Claimant] agreed to file a [late appeal.]

Claimant Br. at 8. Clearly, Claimant was properly informed regarding his right to

appeal.

Claimant next contends that the record does not contain any evidence to

support the UCBR’s inference that Claimant’s claim was investigated and that a new

determination was produced . To the contrary, the record contains the April 22, 2014

letter advising Claimant that an investigation into the original Notice would be

initiated, and that “[f]ollowing the investigation, a new [Notice] w[ould] be issued to

[Claimant;]” and the new Notice issued thereafter. C.R. Item No. 7. As the original

Notice found Claimant ineligible for UC benefits, and th e new Notice found Claimant

did have the qualifying wages and 18 weeks of credit to entitle him to UC benefits in6

the amount of $568.00 per week, the record contains substantial evidence to conclude

that an investigation was completed and a new determinati on was issued.

We acknowledge that an appeal’s untimeliness is not always fatal.

[T] he [UCBR] may consider an untimely appeal in limited circumstances. The burden to establish the right to have an untimely appeal considered is a heavy one because the

sta tutory time limit established for appeals is mandatory. An appellant may satisfy this heavy burden in one of two

ways. First, he can show the administrative authority engaged in fraudulent behavior or manifestly wrongful or negligent conduct. Second, he can show non

- negligent conduct beyond h is control caused the delay.

Hessou v. Unemployment Comp. Bd. of Review

, 942 A.2d 194, 198 (Pa. Cmwlth.

2008) (citations omitted). “W here notice is mailed to a claimant’ s last known address

and not returned by the postal authorities as undeliverable, the claimant is presumed

to have received it and is barred from attempting to appeal after the expiration of the

appeal period provided in Section 501(e) of the Law. ” Mihelic v. Unemployment

Comp. Bd. of Review , 399 A .2d 825, 827 (Pa. Cmwlth. 1979).

Based upon the evidence presented in this case , Claimant failed to prove

that his untimely appeal was due to “the administrative authority engag[ing] in

fraudulent behavior or manifestly wrongful or negligent conduct[,]” or “non

negligent conduct beyond [Claimant’s] control[.]” Hessou , 942 A.2d at 198. Rather,

the evidence established that Claimant simply filed his appeal late. Accordingly, we

hold that the UCBR properly affirmed the Referee’s decision dismissing Claim ant’s

appeal as untimely

.

For all of the above reasons, the UCBR’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gerardo Mejia, : Petitioner :

:

v. :

: U nemployment Compensation : Board of Review, : No. 740 C.D. 2015 Respondent :

O R D E R

AND NOW, this 12 th day of May, 201 6

, the Unem ployment

Compensation Board of R eview’s March 26, 201 5 order is affirmed.

___________________________ ANNE E. COVEY, Judge