IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Miller, : Petitioner :

:

v. : No. 1689 C.D. 2014

: Submitted: May 15, 2015 Unemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE SIMPSON FILED: August 6, 2015

Eric Miller (Claimant) petitions for review from an order of the

Unemployment Compensation Board of Review (Board) that dismissed his appeal

from a referee’s decision as untimely pursuant to Section 502 of the

Unemployment Compensation Law 1 (Law). Rather than addressing the Board’s

determination of untimeliness, Claimant ’s counseled brief almost exclusi vely

addresses the propriety of the proceedings before the referee and the merits of the

referee’s decision that denied him unemployment compensation (UC) benefits.

Because we discern no error in the Board’s dismissal of Claimant’s appeal as

untimely , we affirm.

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S.

§822.2 I. Background

Claimant worked for Grove US (Employer) as an assembler. In

December 2013, Employer terminated Claimant ’s employment based on his failure

to devot e his complete effor t to work matters or maintain acceptable standards of

work quality. Claimant applied for UC benefits

, which were initially denied

. Claimant appealed.

After a hearing

, a referee issued a decision denying Claimant

benefits. 2 The referee issued the decision on April 15, 2014

, and it was mailed to

Claimant the same day accompanied by notice of the 15

- day appeal period. The

appeal period expired on April 30, 2014. There wa s no indication that the letter

containing the referee’s decision was returned as undeliverable.

Claimant fil ed his appeal to the Board o n May 13, 2014. The Board

notified Cl aimant his appeal was not filed within the requisite 15

- day period.

Claimant requested a hearing regard ing the timeliness of his appeal.

A referee held a hearing regarding the timeliness of Claimant’s appeal

to the Board at which only Claimant appeared and testified. Claimant testifi ed that

by the time he received the r eferee’s decision

, he only had 12 days to file his

appeal

. H e contacted the Careerlink office about the possibility of o btaining free

legal services. Referee’s Hr’g, Notes of Testimony (N.T.), 7/17/14, at 2

- 3.

Claimant testified he was referred to Franklin County Legal Services and was told

2 A transcript of the hearing on the merits of Claimant’s separation from employment i s not included in the certified record. However, for the reasons set forth below, we do not reach the merits of Claimant’s separation from employment with Employer.3

an appeal would not be in his best interest. Id. at 3. Nevertheless

, he began

searching for counsel; however, every office he contacted required significant

funds to represent him , which he did not possess

. Id. Claimant ultimately

contacted the local service center that denied his original claim

, and he was

advised to file his appeal without representation and explain the reason for his late

appeal. Id.

Ultimately, the Board issued a decision dismissing Claimant’s appeal

as untimely under Section 502 of the Law. In so doing, the Board made the

following findings:

4. Fol lowing a hearing on the merits, the Referee iss ued a

decision which denied [C]laimant benefits.

5. A copy of the Refe ree’s decision was mailed to [C]laimant at his last known post office address on the same date.

6. The decision was accompanied by notice advising that the interested parties had fifteen (15) days in which to file a valid appeal.

7. There is no indication that the decis ion mailed to the [C]laimant was returned by the postal authorities as

undeliverable.

8. [C]laimant’s appeal from the Ref eree’s decision, in order to be timely, had to have been filed on or before April 30, 2014.

9. [C]laimant’s appeal was filed on May 13, 2014, by U.S.

Mail.

10 . There is no evidence that [C]laimant was misinformed or misled by the [UC] authorities regarding his ri ght or the necessity to appeal.4

Bd. Op., 8/26/14, Findings of Fact (F.F.) Nos. 4

- 10. The Board further explained:

An appeal to the unemployment compensation authorities is timely if it is filed on or before the last day to a ppeal. The last day to file an appeal from this decision wa s April 30, 2014.
However, [C]laimant did not file an appeal until May 13, 2 0 1 4. The provisions of this section of the Law are mandatory, and the Board has no jurisdiction to accept an appeal file d after the expiration of the statutory appeal period absent limited exceptions not relevant herein. The filing of the late appeal was not caused by fraud or its equivalent by the administrative authorities, a breakdown in the appellate system, or by non

neg ligent conduct. Therefore, [C]laimant’s appeal from the

Refere e’s decision must be dismissed.

Bd. Op. at 2. Claimant now petitions for review to this Court

.

II. Discussion

The sole issue before this Court is whether the Board erred in

determining Claimant did not timely appeal the referee’s decision. However, in his

counseled brief to this Court, Claimant devotes little attention to this issue. Indeed,

he does not address or develop this issue in the A rgume nt section of his brief

.

Thus

, the issue is waived. Berner v. Montour Twp. , ___ A.3d ___ (Pa. Cmwlth.,

No. 1543 C.D. 2014, filed July 9, 2015), 2015 WL 4130473 (party’ s failure to

develop an issue in the argument section of its brief constitutes waiver o f the

issue) ; City of Phil a

. v. Berman , 863 A.2d 156 (Pa. Cmwlth. 2004) ( same ).

Nevertheless, even if properly preserved, we would find no error in

the Board’s decision denying Claimant’s appeal as untimely

. 3 I n UC case s, the

3 Our review is lim ited to determining whether necessary findings of fact were supported by substantial evidence, wheth er errors of law were committed or whether constituti onal rights (Footnote continued on next page...)5

Board is the ultimate fact

- finder and is empowered to resolve all conflicts in

evidence, witness credibility, and weight afforded to evidence. Ductmate Indus.,

Inc. v. Unemployment Comp. Bd. of Review , 949 A.2d 338 (Pa. Cmwlth. 2008).

As a result, unchallenged findings are conclusi ve on appeal. Campbell v.

Unemployment Comp. Bd. of Review , 694 A.2d 1167 (Pa. Cmwlth. 1997).

Section 502 of the Law states a referee’s decision “shall be deemed

t he final decision of the [B] oard, unless an appeal is filed therefrom, within fifteen

days after the date of such decision

.... ” 43 P.S. § 822 . “The requirement that an

appeal be filed within 15 days is jurisdictional, precluding either the Board or a

referee from further considering the matter.” Gannett Satellite Info. Sys., Inc. v.

Unemployme nt Comp. Bd. of Review , 661 A.2d 502, 504 (Pa. Cmwlth. 1995).

Therefore, the time period for taking an appeal cannot be extended as a matter of

grace or mere indulgence. Russo v. Unemployment Comp. Bd. of Review , 13

A.3d 1000 (Pa. Cmwlth. 2010).

There are, however, limited circumstances in which the Board may

consider an untimely appeal. Hessou v. Unemployment Comp. Bd. of Review , 942

A.2d 194 (Pa. Cmwlth. 2008). The bur den to establish the right to an untimely

appeal is heav y in light of the mand atory statutory appeal period

. Id. A c laimant

can s atisfy this burden by showing there was administrative breakd own or fraud, or

by showing no n

- negligent conduct outside the c laimant’s control caused the delay.

(continued...)

were violated. Johns v. Unemployment Comp

. Bd. of Review , 87 A.3d 1006 (Pa. Cmwlth.), appeal denied

, 97 A.3d 746 (Pa. 2014).6

Cook v. Unemployment Comp. Bd. of Review , 6 71 A.2d 1130 (Pa. 1996); Hessou

. Failure to file an app eal within the statutory 15

- day period without meeting this

burden m andates dismissal of the appeal. Hessou

.

Here, the Board found the r eferee issued a decision denying Claimant

benefits on April 15 , 2014

, and a copy of the r eferee’s decision was mai led to

Claimant at his last known address. F

. F . Nos. 4, 5; Certified Record at Item No.

22. The decision was accompanied by a notice that advised Claimant he had 15

da ys to file a valid appeal. Id. T here i s n o indication the postal authorities

returned the decision as undeliverable. F.F. No. 7. Indeed, Claimant admitted

rece ipt of the referee’s decision. N.T. at 3

. However, Cl aimant did not file his

appeal within 15 days of the mailing of the decision. Rather , he waited until May

13, 2014, almost two weeks after the expiration of the appeal period . Claimant

does no t challenge the Board’s findings; as such, they are conclusive on appeal.

Campbell

.

A lthough C laimant attempts to assert his untimely appeal should be

excused because he had difficulty locating an attorney to represent him, this excuse

does not meet t he heavy burden of proof necessary to justify an untimely appeal.

Indeed, Claimant does not allege n on

- negligent conduct outs ide of his control or

fraud caused his untimely appeal

.

Further, C laimant briefly asserts there was an administrative

breakdown because he was in communication with the UC service center in his

attempts to appeal the referee’s decision while he attempt ed to obtain legal7

assistance. However, the Board specifically found: “There is no evidence that

[C]laimant was misinformed or misled by the [UC] authorities regarding his right

or the necessity to appeal.” F.F. No. 10. The record supports this finding. N.T. at

3. To that end, at the referee’s hear ing, Claimant did not explain how his contact

with the UC service center was misleading or could otherwise constitute

administrative breakdown. Id. Th erefore , we discern no error in the Board ’s

dismiss al of C laimant’s appeal as untimely.

Accordingly, we affirm.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric Miller, : Petitioner :

:

v. : No. 1689 C.D. 2014

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

AND NOW , this 6 th day of August , 2015, the order of the

Unemployment Compensation Board of Review is AFFIRMED

.

ROBERT SIMPSON, Judge