IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lahaina Kameha, :

Petitioner :

:
v. : No. 366 C.D. 2019 : Submitted: August 23, 2019 Unemployment Compensation Board : of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge 1 HONORABLE MICHAEL H. WOJCIK , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: October 30, 2019

Lahaina Kameha (Claimant)

, pro se , petitions for review of an
adjudicati on of the Unemployment Compensation Board of Review (Board) that

dismissed her appeal as untimely under Section 502 of the Unemployment
Compensation Law (Law)

. 2 Discerning no error by the Board, we affirm

.

Claimant worked part

- time for Reliance First Capital (Employer) as a
Telemarketer Verification Agent beginning on August 24, 2016. Her last day was

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson assumed the status of senior judge.

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 822. Section 502 of the Law provides

, in relevant part: The parties and their a ttorneys or other representatives of record and the department shall be duly notified of the time and place of a referee’s hearing and of the referee’s decision, and the reasons therefor, which shall be deemed the final decision of the [B]oard, unless an a ppeal is filed therefrom, within fifteen days after the date of such decision the board acts on its own motion, to review the decision of the referee. 43 P.S. §822.2

June 16, 2017. Claimant filed a claim for unemployment compensation benefits,
which the Unemployment Compe nsation (UC) Service Center denied under Section
402(b) of Law, 43 P.S. §802(b). 3 Claimant appealed, and the Referee held a hearing
on October 3, 2017. Claimant appeared and testified at this hearing. The Referee

concluded that Claimant failed to establ ish a necessitous and compelling reason for leaving her employment and affirmed the UC Service Center’s determination that
Claimant was ineligible for benefits. The Referee mailed his decision t o Claimant
on October 5, 2017. The Referee’s decision stated that the final date to appeal was
October 20, 2017.

Claimant appealed to the Board on November 7, 2018. On November
16, 2018, the Board informed Claimant that her appeal was untimely

. Claimant
requested a hearing

, prompting the Board to remand the matter to the Referee for
further proceedings on whether the Board could still exercise jurisdiction

.

T he Referee conducted a telephonic hearing on January 31, 2019.

When asked whether she receive d a copy of the Referee’s October 5, 2017 , decision,

C laimant testified as follows:

[Referee:] Did you receive the Referee’s Decision?

* * *
[Claimant:] That’s the one that I did not get right away. I had been in the process of working with an agent from LifeLock with the fraudulent activity that was going on with my mail and with my bank accounts and all sorts of things.

3 Section 402(b) , 43 P.S. §802(b), states, in relevant part, that a claimant shall be inel igible for compensation for any week in which the claimant’s unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature.3 [R eferee :] Okay. But you attended the hearing. So after attending the hearing, are you saying you never received the Referee’s Decision?

[C laimant :] Yes.

Notes of Testimony, 1/31/2019 , at 5

- 6 (N.T.

__ ) . After some further questioning

, Claimant acknowledged that she did, in fact, receive the Referee’s decision. The
following exchange ensued :

[R eferee :] So why was your appeal so late, ma’am?

[C laimant :] Well, for two reasons. One I di d not receive the letter saying that it had to be addressed by that time. And then, the other reason was that I was working with someone who was working with me as far as fraudulent activity going on with the mail and with my identity and things like that

.
N.T. 6. Later, when asked again why her appeal was late, Claimant stated that she

received the Referee’s decision m ore than a year late. Eventually, Claimant stated that she received the Referee’s decision in October 2017 and faxed an appeal of the

d ecision from a CareerLink office before the end of that month . She testified that
she called the UC Service Center to verify that her fax was received and an employee

told her that her appeal had b een sent to the Board.

The Referee transmitted the hearing transcript to the Board for disposition, and on February 25, 2019, the Board dismissed Claimant’s appeal as
untimely. The Board reasoned:

The last day to file an appeal from this decision was October 20, 2017. However , the claimant did not file an appeal until November 7, 2018. The claimant advances several excuses for her late appeal, yet, appeared to be confused about the appeal process. Nevertheless, the claimant acknowledged that she received the determination of the Referee in October of 2017,4 and that she attempted to fax an appeal in that same month. However, the record is void of any evidence on this attempted faxed appeal. The claimant also appeared to assert that her mail[] was fraudulently intercepted and forwarded. However, this is discredited and contrary to her acknowledgment that she attempted to appeal in October of 2017.

Board Adjudication at 2. Claimant now petitions for this Court’s review.

On appeal, 4 Claimant focuses on the merits of her cas e, arguing that the

Referee erred in determining she was i neligible for ben efits under Section 402(b) of
the Law, 43 P.S. §802(b). Claimant contends s he had a necessitous and compelling
reason for quitting her job. However, that issue is beyond the scope of this appeal

. The sole issue before this Court is whether the Board erred in dismissing Claimant’s
appeal as untimely.

Claimant addresses the timeliness issue only in passing by suggesting

that her appeal was late due to fraudulent activity with her mail. She asks this C ourt to “overlook” the fact that her appeal was late . Claimant Brief at 13. The Board
responds that Claimant failed to provide an adequate excuse for her late appeal, and
that it properly dismissed the appeal for lack of jurisdictio n. We agree.

Section 502 of the Law provides that an appeal to the Board must be filed “within fifteen days after the date of [the referee’s] decision.” 43 P.S. §822.

The 15

- day time limit is mandatory; the Board may not consider a claimant’s
eligibilit y for benefits if her appeal is untimely. Shea v. Unemployment
Compensation Board of Review , 898 A.2d 31, 33 (Pa. Cmwlth. 2006). The appeal

4 This Court’ s review of the Board’s adjudication determines whether Claimant’s constitutional rights were violated, errors of law were committed, or findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review , 637 A.2d 695, 697 ( Pa. Cmwlth. 1994).5

period cannot be “extended as a matter of grace or indulgence.” Id. at 33 (quotations
omitted). In other words, the 15

- day appeal deadline is strictly enforced. Dumberth
v. Unemployment Compensation Board of Review , 837 A.2d 678, 681 (Pa. Cmwlth. 2003) (“[A]n appeal filed one day after the expiration of the statutory appeal period must be dismissed as untimely.”).

However, the Board may consider an untimely appeal nunc pro tunc in

limited circumstances. Hessou v. Unemployment Compensation Board of Review

, 942 A.2d 194, 198 (Pa. Cmwlth. 2008). An appellant must show: (1) the

administrative agency engaged in fraud ulent behavior or manifestly wrongful or
negligent conduct; or (2) non

- negligent conduct beyond the appellant’s control
caused the delay. Id. at 198. Without an adequate excuse for the late filing, the

Board must dismiss the appeal. Id.

Here, Claimant o ffered inconsistent testimony when questioned about
her late appeal. She first testified that she never receive d the Referee’s decision

because of fraudulent activity with her mail

. Then she claimed to have received the
decision a year late. Finally, Cl aimant testified that she received the Referee’s
decision in October 2017 and faxed her appeal by the end of the month. The Board
rejected this testimony because Claimant offered no evidence of an attempt to fax an appeal. The Board also discredited Claimant’s testimony that her mail had been

fraud ulently diverted since it was co ntrary to her own testimony that she attempted
to appeal in 2017. Because t he Board is the fact finder in unemployment
compensation cases and has complete authority over cred ibility determinations , we are bound by those determinations

. Kelly v. Unemployment Compensation Board of

Review , 776 A.2d 331, 336 (Pa. Cmwlth. 2001). Thus, we agree with the Board that6

Claimant failed to provide an adequate excuse for filing her a ppeal more than one
year late

. Nor did she establish that her untimely appeal was the result of fraud or a
breakdown in the administrative or judicial process. Accordingly, because t he Board did not err in dismissing Claimant’s appeal

, we affirm its adjudicat ion

.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lahaina Kameha, :

Petitioner :

:
v. : No. 366 C.D. 2019

: Unemployment Compensation Board : of Review, :

Respondent :

O R D E R

AND NOW, this 30 th day of October , 2019, the order of the
Unemployment Compensation Board of Review dated February 25, 2019, in the

above

- captioned matter is AFFIRMED.

_____________________________________ MARY HANNAH LEAVITT, President Judge