IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bobbi Sue Borne, :

Petitioner :

: No. 2016 C.D. 2015

v. :

: Submitted: September 2, 2016

Unemployment Compensation :

Board of Review, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: November 30, 2016

Bobbi Sue Borne (Claimant) petitions, pro se, for review of the 

September 21, 2015 order of the Unemployment Compensation Board of Review 

(Board), which affirmed a referee’s decision dismissing Claimant’s appeal as 

untimely pursuant to section 501(e) of the Unemployment Compensation Law 

(Law).1 

The relevant facts and procedural history of this case are as follows. 

Claimant worked for Vincentian Home (Employer) as a part-time dietary aide from 

April 10, 2012, to April 17, 2013. Claimant was terminated as of April 19, 2013. 

 

1

Section 501(e) of the Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, 

as amended, 43 P.S. §821(e).
2

Nevertheless, Claimant sought and received unemployment compensation benefits 

after alleging her reason for separation was a lack of work with Employer. Claimant 

received these benefits for a period of twenty weeks, with her first payment covering 

the week ending May 4, 2013. Two years later, on April 30, 2015, the Bureau of UC 

Benefits and Allowances sent questionnaires to both Claimant and Employer, 

requesting that they complete and return the same in order to determine Claimant’s 

eligibility for benefits.2 Claimant did not return the questionnaire. Employer did 

return its questionnaire, indicating that Claimant was discharged effective April 19, 

2013, because of her attitude and demeanor toward its residents and their family 

members.

The local service center thereafter issued a UC Overpayment 

Classification Worksheet alleging that Claimant received an overpayment of benefits 

due to fraud by reporting that her reason for separation from Employer was a lack of 

work. On June 25, 2015, the local service center issued three separate notices of 

determinations. The first notice held that Claimant was ineligible for benefits under 

section 402(e) of the Law, 43 P.S. §802(e).3 The second notice included a 

determination that Claimant received a fault overpayment of $2,280.00 in 

unemployment compensation benefits pursuant to section 804(a) of the Law, 43 P.S. 

§874(a).

4

 The third notice included a penalty determination of twenty-two weeks and 

 

2

The record is unclear as to the reason for the lengthy delay in this matter.

3

Section 402(e) of the Law provides that an employee shall be ineligible for benefits for any 

week in which her unemployment is due to her discharge from work for willful misconduct 

connected with her work. 

4

Section 804(a) of the Law provides, in pertinent part, that “[a]ny person who by reason of 

his fault has received any sum as compensation under this act to which he was not entitled, shall be 

(Footnote continued on next page...)
3

$342.00 pursuant to section 801(b) of the Law, 43 P.S. §871(b), as a result of the 

knowingly false statement she made regarding her separation from employment in 

order to obtain benefits.5 Each of these notices specifically advised Claimant that the 

last day to file an appeal was July 10, 2015.

Claimant, however, did not file her appeals until July 14, 2015. The 

referee held a hearing on August 11, 2015, limited to the issue of the timeliness of 

Claimant’s appeals. Claimant testified that she did not receive the notices of 

determinations until Friday, July 10, that she worked on Monday, July 13, and that 

 

(continued...)

liable to repay to the Unemployment Compensation Fund to the credit of the Compensation 

Account a sum equal to the amount so received by him and interest. . . .” 43 P.S. §874(a).

5

Section 801(b) provides as follows:

Whoever makes a false statement knowing it to be false, or 

knowingly fails to disclose a material fact to obtain or increase any 

compensation or other payment under this act or under an 

employment security law of any other state or of the Federal 

Government or of a foreign government, may be disqualified in 

addition to such week or weeks of improper payments for a penalty 

period of two weeks and for not more than one additional week for 

each such week of improper payment: Provided, That no additional 

weeks of disqualification shall be imposed under this section if 

prosecution proceedings have been instituted against the claimant 

because of such misrepresentation or non-disclosure. The 

departmental determination imposing penalty weeks under the 

provisions of this subsection shall be subject to appeal in the manner 

provided in this act for appeals from determinations of compensation. 

The penalty weeks herein provided for shall be imposed against any 

weeks with respect to which the claimant would otherwise be eligible 

for compensation, under the provisions of this act, which begin within 

the four year period following the end of the benefit year with respect 

to which the improper payment or payments occurred.

43 P.S. §871(b).
4

Tuesday, July 14, was the first day she was able to file her appeals. Claimant 

acknowledged that the notices included a mailing date of June 25, 2015. Upon 

questioning by Employer’s representative, Claimant confirmed her mailing address as 

528 Demmler Drive, Pittsburgh, Pennsylvania, the same address listed on the notices. 

Claimant then stated that her mail was “very bad” and that she had complained about 

her mailman to the post office, but had never filed a formal complaint. (Notes of 

Testimony (N.T.), 8/11/15, at 6.)

By decision dated August 12, 2015, the referee dismissed Claimant’s 

appeal as untimely. The referee found that the notices were sent to Claimant’s last 

known post office address and were not returned as undeliverable. The referee stated 

that section 501 of the Law includes a mandatory 15-day appeal period, “absent fraud 

or wrongful conduct on the part of the authorities.” (Referee’s decision at 2.) The 

referee acknowledged Claimant’s testimony that she had continuing problems with 

her mail, but noted that it was her obligation to address this problem by filing a 

formal complaint with the postal authorities or making daily trips to the post office to 

retrieve her mail. Claimant appealed to the Board, which affirmed the referee’s 

decision and adopted and incorporated the referee’s findings and conclusions.

On appeal to this Court,6 Claimant argues that the Board erred in 

dismissing her appeal as untimely.7 We disagree.

 

6 Our scope of review is limited to determining whether constitutional rights have been 

violated, whether an error of law has been committed, and whether findings of fact are supported by 

substantial evidence. Torres-Bobe v. Unemployment Compensation Board of Review, 125 A.3d 

122, 126 n.3 (Pa. Cmwlth. 2015).

7

In her brief, Claimant frames the issue as “[w]hether respondent erred in finding that there 

was insufficient evidence that the claimant did not respond in due time to the appeal.” (Claimant’s 

brief at 4.)
5

In pertinent part, section 501(e) of the Law provides that an appeal from 

a notice of eligibility determination must be filed “within fifteen calendar days after 

such notice was delivered to him personally, or was mailed to his last known post 

office address.” 43 P.S. §821(e). If an appeal is not filed within fifteen days of 

mailing, the determination becomes final and the Board is without jurisdiction to 

consider the matter. Roman-Hutchinson v. Unemployment Compensation Board of 

Review, 972 A.2d 1286, 1288 n.1 (Pa. Cmwlth. 2009). 

When 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, absent extraordinary circumstances, is barred from filing an untimely 

appeal. Mihelic v. Unemployment Compensation Board of Review, 399 A.2d 825, 

827 (Pa. Cmwlth. 1979). The presumption of receipt “is based on the notion that, 

once the notice, properly addressed, is placed in the mail, there are usually two 

options: either the notice will be delivered as addressed, or, if it cannot be delivered, 

it will be returned to the sender.” Volk v. Unemployment Compensation Board of

Review, 49 A.3d 38, 41 (Pa. Cmwlth. 2012) (en banc). “Although those two options 

are the most likely to occur in our experience, there are occasions in which mail is 

lost or not delivered for some reason.” Id. 

If certain requirements are established, a party may proceed nunc pro 

tunc, or “now for then,” with an untimely appeal. Hessou v. Unemployment 

Compensation Board of Review, 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008). “An 

appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by 

extraordinary circumstances involving fraud, administrative breakdown, or nonnegligent conduct, either by a third party or by the appellant.” Mountain Home 

Beagle Media v. Unemployment Compensation Board of Review, 955 A.2d 484, 487 
6

(Pa. Cmwlth. 2008). An appellant may satisfy this 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 [her] control caused the delay.” Hessou, 942 A.2d at 198.

In the present case, Claimant has not presented any evidence establishing 

fraud or wrongful or negligent conduct on the part of the administrative authorities. 

Rather, Claimant alleges the negligent conduct of a third party, her mailman, was 

responsible for her delay in filing her appeals. This Court has recognized that a

claimant can rebut the presumption of receipt by providing credible testimony that 

she was having difficulty with her mail delivery. See, e.g., Short v. Unemployment 

Compensation Board of Review (Pa. Cmwlth., Nos. 895-900 C.D. 2015, filed 

February 24, 2016) (a claimant’s testimony alone, if credited by the Board, can 

support a finding of fact relating to problems with mail delivery).8 However, the 

Board essentially rejected Claimant’s testimony in this regard as not credible,

9

and 

concluded that if Claimant was having problems with her mail, she should have filed 

a formal complaint with the postal authorities. Claimant admitted before the referee 

that she had not filed such a complaint. (N.T., 8/11/15, at 6.) In essence, Claimant is 

asking this Court to re-weigh the evidence in her favor, something we cannot do. See 

Stringent v. Unemployment Compensation Board of Review, 703 A.2d 1084, 1090 

 

8

Pursuant to this Court’s Internal Operating Procedures, unreported decisions may be cited 

for their persuasive value but not as binding precedent. 210 Pa. Code §69.414(a).

9

The law is well settled that the Board has exclusive province over questions of credibility 

and evidentiary weight and “need not accept even the uncontroverted testimony of the claimant . . . 

.” Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 

1981).
7

(Pa. Cmwlth. 1997) (this Court cannot re-weigh the facts as found by the 

administrative agency).

Claimant also alleges in her brief that she had a witness with her at the 

referee’s hearing to corroborate her testimony that she did not receive the notices 

until July 10, 2015, but that witness was not allowed to testify. However, Claimant’s 

allegation is contradicted by the record. Claimant brought a single witness with her 

to the referee’s hearing. Near the conclusion of the hearing, the referee asked 

Claimant if she wanted her witness to offer any testimony, to which Claimant 

responded “[n]o, she could – the only reason she’s here [sic] to offer testimony on 

my, you know what [sic] did at [Employer].” (N.T., 8/11/15, at 7.) The referee noted 

that the reasons underlying her termination from Employer were not part of that day’s 

hearing.

Because Claimant failed to file her appeals on or before July 10, 2015, 

i.e., within 15 days of the issuance of the notices of determinations, and did not 

establish fraud, administrative breakdown, or non-negligent conduct sufficient to 

warrant a nunc pro tunc appeal, the Board did not err in dismissing her appeal as 

untimely.

Accordingly, the Board’s order is affirmed. 

 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bobbi Sue Borne, :

Petitioner :

: No. 2016 C.D. 2015

v. :

:

Unemployment Compensation :

Board of Review, :

Respondent :

ORDER

AND NOW, this 30th day of November, 2016, the order of the 

Unemployment Compensation Board of Review, dated September 21, 2015, is 

hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge