IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chelsea V. Watson

, : Petitioner :

:

v. : No. 907 C.D. 2019

: Submitted : March 26 , 2020 1 Unemployment Compensation : Board of Review, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER , Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER , Senior J udge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: April 29, 2020

Chelsea V. Watson ( Claimant ) petitions for review of a June 13, 2019 Order
of the Unemployment Compensation (UC) Board of Review (Board) that affirmed
a Referee’s Decision dismissing Claimant’s appeal as untimely pursuant to Section

1 On February 13, 2020, by agreement of both parties, this Court granted Respondent’s Application for Leave to Submit the Case on Briefs Without Oral Argument, and cancelled oral argument in this case. Pursuant to the Administrative Order entered March 12, 2020, In Re: Commonwealth Court March 2020 Oral Argument Session (Pa. Cmwlth., No. 126 Misc. Docket No. 3, filed March 12, 2020), oral arguments were rescheduled to take place between Tuesday, March 24, 2020

, and Thursday, March 26, 2020. Accordingly

, the date submitted is March 26,
2020.2

50 1(e) of the UC Law (Law), 43 P.S. § 82 1(e)

. 2 On appeal, Claimant argues that

she

, in fact

, faxed in a timely appeal of the UC local Service Center ’s

determination

. Based on a review of the record

, we affirm the Board’s Order

.

I. BACKGROUND

On November 12, 2017

, Claimant filed a claim for UC benefits after her
separation from Conewango Valley Country Club (Employer) on October 29,

2017

. (Claim Record, Certified Record (C.R.) Item 1 .) The local Service Center
requested information from Claimant regarding her employment separation ;

however

, Claimant d id not respond. (Letter to Claimant, C.R. Item 2.) In a phone
interview and questionnaire

, Employer stated Claimant was discharged for willful

misconduct. (Record of Oral Interview, C.R. Item 3; Employer Questionnaire,

C.R. Item 4.) On June 6 , 2018

, th e local Service Center iss u ed a Notice of

Determination

, finding Claimant ineligible for benefits due to willful misconduct
under Section 402(e) of the Law , 43 P.S. § 8 02(e)

. 3 ( C.R. Item 6 .) The local

Service Center also issued a Notice of Determination for Fault Overpayment of

Benefits on the same date

. The Notice s of Determination expressly stated

Claimant had until June 21, 2018

, to file an appeal

. The Notices of Determination

were mailed to Claimant’s last known address and were not returned as
undeliverable. ( Referee Deci sion, Finding s of Fact (FOF) ¶¶ 2

- 3 , C.R. Item 11. )

2 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 82 1 (e) ( providing that a determination is final if it is not appealed within 15 days of the notice being mailed to the last known post o ffice address ).

3 Section 402(e) of the Law states “ [a] n employe shall be ineligible for compensation for any week

. . . [i] n which [the employe’s] unemployment is due to [the employe’s] discharge or temporary suspension from work for willful misconduct c onnected with [the employe’s] work, irrespective of whether or not such work is “employment” as defined in this act

. . . . ” 43 P.S. § 802(e ).3

On March 21, 2019

, Claimant mailed her appeal from the Notice s of
Determination. ( Claimant’s Petition for Appeal, C.R. Item 7 .) Claimant ’s appeal

stat ed

, “ I fil l ed [sic] an appeal as soon as I received the first papers that were filed

fr o m my previous employer but I am unaware what happened to them and why I
never heard back about my appeal.” ( Id .) A hearing regard ing the timeliness of
the appeal was scheduled before a Referee

. During the hearing, the Referee asked
Claimant why her appeal was late. ( Hr’g Tr

. at 4, C.R. Item 10.) Claimant stated

that her mother faxed in Claimant’s appeal on June 20, 2018 , and test ified as
follows to the Referee’s inquiries regarding the fax :

R Okay. Now, the Determinations that we have here had final appeal dates of June 21 st of 2018, and the envelope that your Appeal documents were mailed in was postmarked March 21 st of 2019. And what would you have for testimony as to why your Appeal was late? C S o, I have my original Appeal that I had sent in, and I was reviewing the

-- that it was sent out I believe on the 5 th , and it needed to be in by 15 th , which as soon as I got this, I made sure that I got my Appeal faxed in, but once I looked and saw that it was sent out on the 5th and late date. It had to be in by the 15 th

. That hadn't given me enough time to get it in on time.

R Now where are you getting the 15 th at? C I believe I saw it

-- I wonder if it was on this one.

R Oh, is this what you were referring to? C Yes.

R That’ s the date

-- this is the Questionnaire that was sent to you, and they wanted the information back by May 15 th of 2018. C Okay. Okay , so as far as that goes, Chris [] had told me when it needed to be faxed and I made sure that it was in by that time. I’ m not 100 percent sure exactly when but I took this very seriously and got it in as soon as it needed to be, and I even have the fax c onfirmation that it was received. But then the next thing that I had heard was I didn’t really hear anything back about the Appeal, so then over the next two months, that’ s when I started to4

go online and try to reach out to someone that could direct me t o what step I needed to take to

--

R Ma ’ am, when did you fax this? C It was on the 20 th of June, 2018.

R And where ’ d you fax it from? C It was faxed from Fed Ex.

R Okay, you have a confirmation there? C Yes.

R Okay, could I see it? Okay, so this is an email. How did you send it? Did you fax it or did you email it? C I had my mom had faxed [ sic ] it from Fed Ex.

R Okay. Okay, do you know what number that it was sent to? C I just know that I had gotten the fax number off of an online form and I gave her that to send it to. And that ’ s why when I did my second appeal, that I ended up just typing out the letter and sending it in by mail because I wanted to make sure that it was received and my statement was clear.

R Your mothe r works at Fed Ex? C Yes.

. . .

R Okay. Well, it was sent

-- according to this, there ’ s an email that

was sent. It looks like it sent from your mother to her email, but I

. . . C That yeah, [sic] I was a little bit unclear on that, but she did say that when they were sending it that it

-- she had got a confirmation back that it was sent.

R And is that the Appeal that she sent? C Yes [.]

R Now, you didn’ t get anything back from the Unemployment Office after this was sent, did you? C No, not in regarding my Appeal, no

.5

( Id. ) Claimant did not provide a copy or explanation o f what she alleged was timely faxed, only a copy of an email confirmation of a fax

. The copy of the email

dated June 20, 2018

, at 10:40 a.m. from Claimant’s mother’s email address to

Claimant’s mother’s email address was entered into the record. The subject line of

the email states that the fax transmission to the listed fax number “was
Successful.” ( Id. at 7 , Claimant’s Ex

. 1.) The email also included the number to

which it was faxed

, a date and time (“6/20/2018 2:37:00 PM”), and the total
number of pages faxed (3)

. ( Id .)
Following the hearing, t he Referee issued a Decision, determin ing that
Claimant did not appeal on or before June 21, 2018

, as required. ( FOF ¶¶ 4

- 5 .)

The Referee stated that Claimant did not possess the “actual confirmation from
when the appeal may have been faxed in June 2018.” ( Id . ¶ 6.) In addition, the

Referee determined Claimant was not misinfor med or misled regarding her right or
need to appeal the local Service Center’s determination. ( Id . ¶ 7.) Thus, the

Referee di smissed the Petition for Appeal as untimely. ( Id .)

Claimant then appealed the Referee’s De cision to the Board. (Claimant’s

P etition for Appeal, C.R. Item 12 .) On June 13, 2019

, the Board issued its Order
adopting and incorporating the Referee’s findings of fact and conclusions of law

and affirming the Referee’s Decision

. (Board’s Order, C.R. Item 15 .) The Board
additionally noted that the fax number listed on the email Claimant provided was the one provided on the Notices of Determination . ( Id .) The Board

, however

,6

noted that Claimant ’s mother did not testify and there was no evidence presented

as to what was faxed. 4 ( Id .)

II. PARTIES’ ARGUMENTS
On appeal to this Court

, 5 Claimant argues that she offered credible testimony
and a copy of an email confirmation to demonstrate that her mother timely faxed

Claimant ’s appeal on June 20, 2018. Claimant further asserts that, according to the
Department of Labor and Industry’s (Department) regulations

, the date on the copy

of the email confirma tion should be considered the filing date. Claimant asks “this

Court [to ] reverse the Board’s decision and enter an order finding [Clai mant]’s
appeal timely and remand [] for further proceedings on the merits of [Claimant]’s
appeal. ” (Claimant’s Brief (Br.) at 14.)
The Board responds th at Claimant filed her appeal nine months after the
statutory deadline, and thus it was untimely. Furth ermore, the Board asserts that
Claimant did not present enough evidence to demonstrate that she timely appealed

. Specifically, t he Board notes that Claimant’s mother did not testify and there was
no evidence to indicate that the appeal was received. Addi tionally , the Board
argues that Claimant did not provide any evidence as to what was faxed. The

Board asserts that Claimant’s t estimony about the fax was not competent because
Claimant was not present when her mother sent the fax.

4 The Board’s Order references a document attached to Claimant’s brief to the Board that it could not consider because it was not part of the record. This document is not attached to the brief in the Certified Record.

5 “Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated.” Johns v. Unemployment Comp. Bd. of Review , 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).7

III. DISCUSSION
Section 501(e) of the Law governs an appeal of a local Service Center’s
Determination. It provides that :

Unless the claimant or last employer or base

- year employer of the claimant files an appeal with the [B] oard, from the determination contained in any notice required to be furnished by the [D] epartment under section five hu ndred and one (a), (c) and (d), within fifteen calendar days after such notice was delivered to [the claimant] personally, or was mailed to [the claimant’s] last known post office address, and applies for a hearing, such determination of the [D] epartment, with respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in accordance ther ewith.

43 P.S. § 821(e) (emphasis added ). This statutory time frame is memorialized in
the Department’s regulations, as well. See 3 4 Pa. Code § 101.82(a) (“A party
seeking to appeal a Department determination shall file an appeal . . . on or before
the 15th day after the date on which notification of the decision of the Department
was . . . mailed to him at his last known post office address.”)

. “It i s well

- settled
the statutory time limit for filing an appeal is mandatory in the absence of fraud or
a breakdown in the administrative agency.” Pa. Tpk. Comm’n v. Unemployment
Comp. Bd. of Review , 991 A.2d 971 , 974 (Pa. Cmwlth. 2009).
A claimant may appeal a determination of the local Service Center via fax.
34 Pa. Code § 101.82(b)(3) . The Departmen t’s regulation states :

(3) Fax transmission

. (i) The filing date will be determined as follows:

(A) The date of receipt imprinted by the Department, the workforce investment office or the Board ’ s fax machine.8 (B) If the Department, the workforce investment office or the Board ’ s fax machine does not imprint a legible date, the date of transmission imprinted on the faxed appeal by the sender ’ s fax machine.

(C) If the faxed appeal is received without a legible date of transmission, the filing date will be the date recorded by the Dep artment appeal office, the workforce investment office or the Board when it receives the appeal.

(ii) A party filing an appeal by fax transmission is responsible for delay, disruption, interruption of electronic signals and readability of th e document and accepts the risk that the appeal may not be properly or timely filed.

(iii) A fax transmission is timely filed if it is received by the Department appeal office, workforce investment office or Board before midnight on the last day of the appeal
p eriod in accordance with this subsection.

34 Pa. Code § 101.82(b)(3)

. The Department’s regulation clearly set s out how to
determine the date of an appeal that is faxed, and the Board must follow its own
regulations. Francis v. Unemployment Comp. Bd. of Review (Pa. Cmwlth.

, No. 8

C.D. 2019, filed Jan

. 9, 2020), slip op. at 5 ( citing Edwards v. Unemployment
Comp. Bd. of Review , 639 A.2d 1279, 1281 (Pa. Cmwlth. 1994) )

. 6 However, even

when there is an absence of a timely appeal do cument in the Board’s record , if

there is evidence that an appeal was sent, the Board should consi der the evidence

6 P ursuant to Rule 126(b) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b)

, and Section 414(a) of this Court’s Internal Operating Procedures

, 210 Pa. Code § 69.414(a)

, unreported opinions, while not binding on this Court, may be used for th eir persuasive value

.9

and determine whether the appeal was timely

. Wright v. Unemployment Comp. Bd.
of Review , 41 A.3d 58 , 63 (Pa. Cmwlth. 2011).

T he only appeal in the record is the appeal filed on March 21, 2019

. T he

Board’s record lacks any documents regarding the alleged June 2018 fax. At the
hearing before the Referee, Cl aimant provided her own testimony and offered the

email confirmation of the fax . Claimant argues that this i s sufficient evidence to

s atisfy the evidentiary burden the Court set forth in Wright

.
In Wright

, the timeliness of an alleged appeal by fax transmission was also

at issue. There, t he Board received the claimant’s untimely appeal of a local

service center’s determination via fax on August 11, 2010 . The claimant testified
that he refaxed the appeal after realiz ing that the Board did not receive his first fax

trans mission on July 9, 2010 , which would have been timely

. In addition to his
own testimony , t he claimant presented the testimony of h is father who faxed the
appeal and an account log to show the fax was successfully submitted. Wright

, 41

A.3d at 60. Also in the record was a statement by an uninterested party at the
father’s office conveying t hat the father faxed a n appeal on July 9, 2010

. Id . at 61.

This Court concluded that the statement noted that the August 11, 2010 fax “was
merely a copy of the appeal originally faxed on July 9, 2010.” Id . at 62

- 63. The

r eferee credited the testimony and documents and ruled that the appeal was timely.

The e mployer appealed to the Board regarding the merits, not whether the appeal
was timely. However, the Board determined that the claimant’s appeal was
untimely . In doing so, the Board did not acknowl edge or discredit any of the

evidence the claimant presented before the r eferee related to the initial faxed
appeal in July 2010 . Instead, the Board only made a finding that the claimant
appeal ed via fax on August 11, 2010.10

On appeal, we concluded t he Boa rd err ed in neglecting to issue any findings

of fact or conclusions of law regarding the alleged July 9, 2010 fax when it
overruled the Referee and deemed the appeal untimely. Id . at 67. This Court
faulted the Board for making “ no finding that the earlie r transmitted appeal , the
appeal that is the basis for the Referee’s decision on timeliness, was not properly or
timely filed.” Id

. (emphasis added). Furthermore

, this Court noted that the Board
“capriciously disregarded th [ e] evidence when it focused so lely on the August 11,

2010 fax transmission in its record.” Id

. Therefore, we reversed the Board’s
decision and remanded for a determination to be made on the employer’s appeal.
In contrast, in the case currently before us, the Referee and the Board
weighed Claimant’s evidence and determined that Claimant did not present enough
evidence to support her claim that the appeal was timely faxed

. Additionally,
Claimant presented less evidence of her alleged timely appeal than the claimant
presented in Wrig ht

. Here, Claimant did not present any testimony from her

mother who purportedly faxed the appeal. The only evidence is the email , which
provides no information as to what was faxed to the Board. Moreover, the email

indicates it was sent at 10:40 a.m., but confirmed the fax was sent later that day at
2:37 p.m. Therefore, it seems that the email was sent before the alleged fax

submission. Unlike the claimant in Wright

, Claimant also did not produce a full
copy of what was allegedly originally faxed. 7

7 Claimant asserts that the Referee “did not inquire about the specific contents of Petitioner’s faxed appeal.” (Claimant’s Br. at 9.) When a claimant is before a referee unrepresented by counsel, a referee is required to be cautio us to ensure the claimant is given the opportunity to fully present the claimant’s case. Brennan v. Unemployment Comp. Bd. of
Review , 487 A.2d 73, 77 (Pa. Cmwlth. 1985). However, the referee need only assist “in a matter consistent with the impartial exe rcise of [the referee’s] duties” and “[t]he referee need not advise an uncounseled claimant on specific evidentiary questions . . . .” Id . In the case before us, the (Footnote continued on next page...)11

As the Board is the ultimat e finder of fact, we are constrained by the record

and the findings made by the Board if they are supported by substantial evidence.
Peak v. Unemployment Comp. Bd. of Review

, 501 A.2d 1383, 1389 (Pa. 1985).
The Board is “required to explain its decision in sufficient detail to permit
meaningful appellate review.” Id

. In the case before this Court, the Board found

that Claimant’s evidence of a timely appeal was insufficient

. (Board Order, C.R.

Item 15.) We find no fault in this finding as it is supported by the evidence and not
inconsistent with our precedent

. Having concluded that Claimant’s appeal was untimely, we must next

consider whether Claimant is entitled to nunc pro tunc relief. An appeal nunc pro

tunc is warranted when there was a delay in filing due to extraordinary

circumstances which involve fraud, a breakdown in the administrative process , or

non

- negligent conduct by a petitioner, a petitioner ’s counsel, or a third party. Cook
v. Unemployment Comp. Bd. of Review , 671 A.2d 1130, 1131 (Pa. 1996).

Claimant argues that she testified credibly that her mother, a third party, non

negligently faxed in the appeal documents

. However, the Board is the finder of
fact and decides credibility issues. Peak , 501 A.2d at 1389. Although the Board
did not make an express credibility determination about Claimant, it is apparent
based upon its holding that the Board did not credit Claimant’s testimony about the
original fax. We cannot overturn these findings. Furthermore, C laimant chose to
file the appeal by fax and “accept[ed] the risk that the appeal may not be properly

_____________________________ (continued...) Referee asked Claimant a series of questions regarding the fax, and also asked Claimant whether there was anything else Claimant would want to testify to regarding the timeliness of her appeal. ( Hr’g Tr

. at 5 , C.R. Item 10 .) Therefore, we find no issue with how the Referee conducted the hearing.12

or timely filed. ” 34 Pa. Code § 101.82(b)(3) (ii). Therefore, Claimant has not
proven that she is entitled to nunc pro tunc relief.

IV. CONCLUS ION
Based on the aforementioned, we affirm the Board’s Order , dismissing
Claimant’s appeal as untimely.

_____________________________________ RENÉE COHN JUBELIRER, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Chelsea V. Watson, : Petitioner :

:

v. : No. 907 C.D. 2019

: Unemployment Compensation : Board of Review, : Respondent :

O R D E R

NOW , April 29, 2020 , the O rder of the Unemployment Compensation

Board of Review, dated June 13 , 2019 , is AFFIRMED.

_____________________________________ RENÉE COHN JUBELIRER, Judge