IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nadine I. Lex, :

Petitioner :

:

v. : No. 986 C.D. 20 1 5

: Submitted: Octo ber 2 , 20 1 5 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Ju dge

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 o rder 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 Findi ng 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 ). Sectio n 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 sectio n five hundred and one (a), (c) and (d), within fifteen (Footnote continued on next page...)2 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 Ce nter (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 no t returned as undeliverable.

On March 2, 2015, Claimant appealed to the Referee and a hearing

was ordered to determine whether t he 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 t he
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 s he did not register on the www.jobgateway.pa. gov website that she would be
disqualified f

r om benefits beginning the week ending January 31, 2015. All other notices were
sent to her updated address.3

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

file d more than 15 days as provided for in Section 501(e) , which is mandatory

, and

he had no jurisdiction to hear an appe al 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 t here 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 t unc 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).4

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 o f

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 JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nadine I. Lex, :

Petitioner :

:

v. : No. 986 C.D. 201 5

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 23 rd 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