IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Kinback, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 2403 C.D. 2014

Respondent : Submitted: November 20, 2015

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge1

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

 After review, we affirm.

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

time, Claimant’s address was 8125 Algon Avenue, Philadelphia, Pennsylvania 19152. 

On May 12, 2014, the Erie UC Service Center mailed Claimant a Notice of 

Determination (Determination) denying his EUC benefits for the week ending June 

22, 2013, pursuant to Sections 4001(i)(1)(B) and 4001(i)(3) of the Supplemental 

 

1

This 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 the 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 mandatory reemployment and eligibility assessment sessions. On that 

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

Determination (Overpayment Determination) under Sections 4005(b) and 4005(c) of 

the EUC Act, 26 U.S.C. § 3304 Note. The Determinations were mailed to Claimant 

at 8125 Algon Avenue, Philadelphia, Pennsylvania 19152. Both Determinations 

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

Claimant 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 

decision. 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 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 appeal 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, 

 

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 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; otherwise, 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 July 16, 2014, 51 days after the May 27, 2014 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 because 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 his control caused the delay. 

Hessou v. Unemployment Comp. Bd. of Review, 942 A.2d 194, 198 (Pa. Cmwlth.

2008) (citations omitted). “Where 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). 
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 

instructions 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 tried calling the unemployment office[,] . . . I either got 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 his 

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’s untimely appeal was due to his failure to check 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 above-stated reasons, the UCBR’s order is affirmed. 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank Kinback, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 2403 C.D. 2014

Respondent :

O R D E R

AND NOW, this 7

th day of March, 2016, the Unemployment 

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

___________________________

ANNE E. COVEY, Judge