IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anne E. Weir, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1004 C.D. 2015

Respondent : Submitted: December 4, 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 21, 2016

Anne E. Weir (Claimant) petitions this Court for review of the 

Unemployment Compensation (UC) Board of Review’s (UCBR) May 26, 2015 order 

affirming the Referee’s dismissal of her appeal pursuant to 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. After review, we affirm.

Claimant applied for UC benefits after being discharged by Mardinly 

Enterprises, LLC (Employer) on October 1, 2014. At that time, Claimant’s address 

was 1220 Steel Road, Havertown, Pennsylvania 19083. On November 21, 2014, the 

Lancaster UC Service Center mailed Claimant a Notice of Determination denying her 

benefits under Section 402(e) of the UC Law (Law).3 On that same day, the 

 

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

43 P.S. § 802(e) (referring to Claimant’s ineligibility due to willful misconduct).
2

Lancaster UC Service Center mailed Claimant a Fault Notice of Overpayment 

Determination in accordance with Section 804(a) of the Law,4and a Notice of 

Penalty Determination pursuant to Section 801(b) of the Law.5 All three

Determinations were mailed to Claimant at 1220 Steel Road, Havertown, 

Pennsylvania 19083, and expressly informed Claimant that December 8, 2014 was 

the last day to file an appeal. 

According to the Department of Labor and Industry’s records, Claimant 

appealed from the Determinations on March 25, 2015. A Referee hearing was held 

on April 20, 2015. By April 20, 2015 decision, the Referee dismissed Claimant’s 

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

UCBR and requested a remand hearing. On May 26, 2015, the UCBR denied 

Claimant’s remand request and affirmed the Referee’s decision. Claimant appealed 

to this Court.6

Claimant argues that because she filed the appeal from the 

Determinations by fax on December 8, 2014, the UCBR erred by dismissing her

appeal as untimely.

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 

 

4

43 P.S. § 874(a).

5

43 P.S. § 871(b).

6

Employer intervened.

“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

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 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). Although Claimant maintains that 

she filed her appeal by fax, Section 101.82 of the Department’s Regulations states, in 

relevant part: “A party filing an appeal by fax transmission . . . accepts the risk that 

the appeal may not be properly or timely filed.” 34 Pa. Code § 101.82. 

In the instant matter, Claimant testified that she received the 

Determinations, and explained:

R[eferee] Now, were you aware that each Determination 

specified that the final day to file a timely appeal was 

December 8, 2014?

C[laimant] Correct. And I did file.

R Okay. Do you have any evidence of that?

C I do not. I faxed it. . . . 

R Okay. When you say you did it by fax[,] you don’t have 

the confirmation or a sheet . . .

C No.

R . . . or anything to show me?
4

C I do not.

Certified Record Item 10, Notes of Testimony, April 20, 2015 (N.T.) at 5. In 

addition, Claimant stated:

EW [Employer representative Frank Morgan (Morgan)] 

And in your employment with [Employer] . . . you would 

print out confirmations to faxes, so you’re familiar with that 

procedure.

C No, I didn’t. I never printed out confirmations of faxes 

for [Employer].

[Morgan] But you were aware that you could?

C Yes.

N.T. at 6. Claimant clarified:

R Did you keep a copy of the fax that you allege that you 

originally sent?

C Yes. I have that.

R Okay. Do you have it with you?

. . . . 

C Yes. What I sent.

. . . .

R Did you just refax the same . . . 

C Yes.

R . . . document? Okay.

C Yeah . . .

R So then you don’t have a separate copy of . . . 

C No. 

R . . . a different appeal?

C No.
5

N.T. at 7. Claimant explained that because she was caring for her husband after his 

open heart surgery, she forgot about the appeal until her counsel advised her to follow 

up.

7

 Claimant recalled that after she learned that her appeal deadline had passed, she

faxed another appeal on March 25, 2015.

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, [s]he can show the administrative authority 

engaged in fraudulent behavior or manifestly wrongful or 

negligent conduct. Second, [s]he can show non-negligent 

conduct beyond h[er] control caused the delay. 

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

2008) (citations omitted). This Court has held that a claimant’s failure to confirm a 

successful fax transmission does not qualify as non-negligent conduct beyond her 

control. Lopresti v. Unemployment Comp. Bd. of Review, 55 A.3d 561, 563 (Pa. 

Cmwlth. 2012). 

“In unemployment compensation matters, ‘the [UCBR] is the ultimate 

fact finder and is empowered to resolve conflicts in the evidence and to determine the 

credibility of witnesses.’” Goppman v. Unemployment Comp. Bd. of Review, 845 

A.2d 946, 947 n.2 (Pa. Cmwlth. 2004) (quoting Owoc v. Unemployment Comp. Bd. of 

Review, 809 A.2d 441, 443 (Pa. Cmwlth. 2002)). Here, the UCBR “[did] not find 

credible [] [C]laimant’s assertion that she filed an appeal by fax on December 8, 

2014.” UCBR Dec. at 1. 

In light of the UCBR’s credibility determination, and there being no 

evidence that Claimant’s untimely appeal was due to “the administrative authority 

 

7 Claimant was not represented by counsel at the time the appeals were due.
6

engag[ing] in fraudulent behavior or manifestly wrongful or negligent conduct[,]” or 

“non-negligent conduct beyond [Claimant’s] control,” and Claimant’s appeal was not 

filed until March 25, 2015, 108 days after the December 8, 2014 deadline, we hold 

that the UCBR properly affirmed the Referee’s decision dismissing Claimant’s appeal

as untimely. Hessou, 942 A.2d at 198. 

For the above-stated reasons, the UCBR’s order is affirmed. 

___________________________

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

Anne E. Weir, :

Petitioner :

:

v. :

:

Unemployment Compensation :

Board of Review, : No. 1004 C.D. 2015

Respondent :

O R D E R

AND NOW, this 21st day of March, 2016, the Unemployment 

Compensation Board of Review’s May 26, 2015 order is affirmed.

___________________________

ANNE E. COVEY, Judge