IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Kinback

, : Petitioner :

:

v. :

: Unemployment Compensation : Board of Review

, : No. 2403 C .D. 201 4 Respondent : Submitted : Novem ber 20 , 2015

BEFORE: HONORABLE RENÉE COHN JU BELIRER, Judge

HONORABLE MARY HANNAH LEAVITT , Judge 1

HONORABLE ANNE E. COVEY , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 7, 2016

Frank Kinback (Claimant) , pro se, petitions this Court for review of the

Unemployment Compensation (UC) Board of Review’s (UCBR) November 21 , 2014

order dismissing Claimant’s appeal under Section 501(e) of the UC Law (Law). 2

Essentially, the issue before the Court is whether the UCBR erred by dismissing

Claimant’s appeal as untimely

. 3 Af ter review, we affirm.

Claimant was receiving Emergency UC (EUC) benefits in 2014. At that

time, Claimant’ s address was 8125 Algon Avenue, Philadelphia, P ennsylvania 19 152

.

On M ay 12 , 20 1 4, the Erie UC Service Center mailed Claimant a Notice of

Determin ation (D etermination) denying hi s EUC benefits for the week ending June

22, 2013

, pursuant to Sections 4001(i)(1)(B) and 4001(i)(3) of the Supplemental

1 Th is case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt became President Judge.

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

.

3 Claimant also raises t he issue of whether he was properly denied benefits under Sections
4001(i)(1)(B) and 4001(i)(3) of the Supplemental Appropriations Act of 2008

, 26 U.S.C. § 3304 Note. Given our disposition of the first issue, we do not reach that question.2

Appropriations Act of 2008 (EUC Act)

, 26 U.S.C. § 3304 Note, due to his failure to

participate in mandat ory reemployment and eligibility assessment sessions . On that

same day, the Erie UC Service Center mailed Claimant a Non

- Fraud Overpayment

Determination (Overpayment Determination) under Section s 4005(b) and 4005(c) of

the EUC Act, 26 U.S.C. § 3304 Note

. The D etermination s w ere mailed to C laimant

at 8125 Algon Avenue, Philadelphia, P ennsylvania 19 152

. Both Determinations

informed C laimant that May 27, 2014 was the last day to file an appeal.

C laimant appealed from the Determinations on July 16, 2014

. A Referee

hearing was held on September 30, 2014 . On October 2, 2014, the Referee dismissed

Claimant’s appeal as untimely pursuant to Section 501(e) of the Law. Claimant

appealed to the UCBR. On November 21, 2014 , the UCBR affirmed the Referee’s

decis ion. Claimant appealed to this Court. 4

Claimant argues that the UCBR erred by dismissing his appeal as

untimely since he did not receive the Determinations until after the last day to appeal

,

and thereafter he was unable to reach a representative at the unemployment office for

nearly two weeks

.

Section 501(e) of the Law,

. . . provides that an appeal from
the UC Service Center ’ s notice of eligibility determination must be filed ‘within fifteen calendar days after such notice was delivered to him [or h er] 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 appeal an administrative agency’s decision constitutes a

jurisdictional def

ect. ” 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,

4 “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

mandates dismissal of the appeal. ” 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 th e 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; otherwise, there would be no finality to judicial action. Therefore, an appe al 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 July 16, 2014

, 51 days after the May 27, 20 1 4 deadline, it was clearly

untimely.

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 bec ause the statutory 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 ret urned 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 R eview , 399 A.2d 825, 827 (Pa. Cmwlth. 1979).4 In the instant matter, Claimant testified that in May 2014, he was

working at a job in Washington, D.C. during the weekdays , but returned home on

weekends and checked his mail. He could not recall what day he received the

Determinations, but asserted that they were “already way past the [appeal] date.”

Certified Record Item 8, September 30, 2014 Notes of Testimony (N.T.) at 9.

Claimant described that, after he read them, “[he] tried calling the unemployment

office to find out what [he] had to do.” N.T. at 9. He acknowledged that the appeal

instructions accompanying the Determinations specified that appeals must be filed by

mail, by fax or by email, and that he “must have overlooked” the portion of the

instr uctions stating that appeals cannot be made by telephone. N. T . at 10.

Notwithstanding, Claimant asserted that he preferred to “talk to a live

representative

, ” which took him approximately two weeks. N.T. at 10. Claimant

explained : “[W]hen . . . I tri ed calling the unemployment office[,] . . . I either go t put

on hold or the PAT system would say call back during business hours.” N.T. at 9.

Claimant recalled that when he finally reached a representative on July 11, 2014, he

was told that although the appeal deadline had passed, an appeal form would be sent

to him, and that he should mail or fax it, which he did on July 16, 2014.

Based upon this evidence, we hold that Claimant failed to prove that h is

appeal was due to “the administrative authority enga g[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’s untimely appeal was due to his failure to ch eck his mail regularly

,

and his choice to file his appeal by telephone rather than as clearly instructed in the

Determinations and appeal guidelines

. Accordingly, the UCBR properly affirmed the

Referee’s decision dismissing Claimant’s appeal.5 For the a bove

- stated reasons, the UCBR’s order is affirmed

.

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

Frank Kinback, : Petitioner :

:

v. :

: Unemployment Compensation : Boar d of Review, : No. 2403 C.D. 2014 Respondent :

O R D E R

AND NOW, this 7 th day of March , 201 6

, the Unemployment

Compensation Board of Review’s November 21, 2014 order is affirmed.

___________________________ ANNE E. COVEY, Judge