IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Famatta M. Gwee

, :

: Petitioner :

:

v. : No. 2429 C.D. 201 4
: No. 2437 C.D. 2014

: Submitted: November 6 , 2015

: Unemployment Compensation : Board of Review

, :

: Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH , Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: Dece mber 30, 2015

Fam atta M. Gw ee (Claimant) petitions this Court for review of two

December 2, 2014 order s of the Unemployment Compensation Board of Review

(Board) dismissing her appeals as untimely pursuant to Section 502 of the

Unemployment Compensation Law (Law). 1 We affirm.

1 Act of December 5, 1936, Second Ex. Sess ., P.L. (1937) 2897, as amended , 43 P.S. § 822. Section 502 states, in pertinent part:

[T[he parties and their attorneys 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 board, (Footnote continued on next page...)2 On August 12 , 2014, following hearings at which both Claimant and

a n unemployment compensation claims examiner testified, the R eferee issued two

decision s that affirmed and modified Notices of Determ ination mailed on July 11,

2 014. (Certified Record (R.) Item 13, Referee’s Decisions/Orders.) T he Referee:

(i) denied Claimant unemployment compensation benefits under Section 401(c) of

the Law

, 43 P.S. § 801(c)

, for benefits paid for weeks ending July 6, 2013 through

December 28, 2013

, 2 imposed a fault overpayment under Section 804(a) of the

Law, 43 P.S. § 874(a), and assessed 28 penalty weeks under Section 801(b) of the

Law, 43 P.S. § 871(b); and (ii) de nied Claimant emergency unemployment

compensation benefits provided under the E mergency Unemployment

Compensation Act of 2008 3 (EUC Act) for weeks ending January 7, 2012 through

June 23, 2012, and January 5, 2013 through May 11, 2013, assessed a fraud

overpayment under Section 4005(a) of the EUC Act in the amount of $11,213, and

(continued...)

unless an appeal 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 The referee determined th at although Claimant was informed

, prior to filing for benefits

, by the PA UC Handbook to report all work and earnings, she filed for and received a total of $6,838 in unemployment benefits to whi ch she was not entitled by consistently failing to report her employment with Multicultural Community Family Servic es

- PA and earnings there from

. (Record (R.) Item 13, Referee’s Decision / Orders

, Appeal No. 14

- 09

- B

- 6897, Findings of Fact (F.F.) ¶¶ 3

- 4.)

3 Title IV of the Supplemental Appropriations Act of 2008, P.L. 110

- 252, 122 Stat. 2323,

Sections 4001

- 4007, 26 U.S. C. § 3304.3

asse ssed 46 penalty weeks under Section 801(b) of the Law and Section 4005(a)(1)

of the EUC Act. 4 ( Id .)

Also on August 12, 2014, a copy of each of the Referee’s decisions

was mailed to Claimant at her last known post office address, an d there is no

indi cation that either was returned by the postal authorities as undeliverable

. (R.

Item 16, Board’s Decisions and Orders, F.F. ¶¶ 2, 4.) Each of the decisions

included a notice advising Claimant that she had 15 days within which to file an

appeal to the Boar d. (R. Item 13, Referee’s Decisions/Orders.) Thus, i n order to

be timel y, Claimant’s appeals of the R eferee’s decisions had to be filed on or

before August 27, 2014. ( R. Item 16, Board’s Decisions/Orders , F.F. ¶ 5.)

However, Claimant’s appeal was not fi led until October 17, 2014. 5 (R. Item 14,

Claimant’s Petitions for Appeal from Referee’s Decisions.) On October 28, 2014,

the Board advised Claimant in writing that her petitions for appeal appeared to be

untimely and informed her that, if she believed t hat her appeals were or should be

deemed to be timely filed, she must reply in writing and request that a hearing be

4 The Referee stated “[a]fter carefully reviewing the record, the Referee finds that Claimant improperly filed a claim for benefits. The record establishes that Claimant was aware of the reporting requirements both [from] the PA UC Handbook and secondly after speaking with a claims examiner instructing on how to file a claim for benefits. ” (R. Item 13, Referee’s Decision/Orders, Appeal No. EUC

- 14

- 09

- B

- 6914, Reasoning.)

5 Claimant’s Petition s for Appeal to the Board correctly recite the date of i ssuance of the
Referee’s Decision s /Order s as Augus t 12, 2014 and correctly recite t he final date for appeal of

those decision s as August 27, 2014; however, the Petition s for Appeal als o refer to a different appeal, identified as Appeal No. 14

- 09

- B

- 8245, wh ich is the appeal number assigned to a n appeal, deemed untimely, not from a referee’s determination but from Notices of Determination that were issued to Claimant on July 31, 2014

. (R. Item 14, Claimant’s Petitions for Appeal

from Referee’s Decisions w/At tachments; Attachment to Claimant’s Brief at 13.)4

held to set forth her reasons why she believed her appeals were timely filed. The

Board’s letter stated the following, in relevant part:

If you believe that you filed your appeal within the fifteen (15) day period or that it should be deemed timely for other reasons, you must request in writing that a hearing be scheduled to allow you the opportunity to set forth your reasons as to why you believe your appeal was timely filed. Please mail your request to the Board at the above letterhead address. Any such hearing involves only the issue of whether the appeal was timely filed. No ruling is made on the merits of the case unless the appeal
i s first ruled timely.

(R. Item 15, Board’s Letter on Timeliness) (emphasis in original.) Claimant failed

to respond to the Board’s letter, and on December 2, 2014, the Board issue d two

Decisions and Orders, each dismissing Claimant’s appeals as untimely u nder

Section 502 of the Law, 42 P.S. § 822. (R. Item 16, Board’s Decisions and Orders.)

Claimant filed the instant petition s for review appealing the Board’s orders to this

Court. 6 By Order dated April 8, 2015, this Court granted the Board’s motion to

c onsolidate the appeals.

In these consolidated appeals, Claimant is represented by counsel.

Claimant does not dispute that she failed to contact the Board to reques t a hearing.

Instead, she contends that on August 22, 2014 she timely appealed the Ref eree’s

de cisions

. As purported proof

, Claimant attaches to her brief a copy of a referee’s

decision i n a separate appeal from Notice s of Determination issued on July 31,

2014 ; there, the referee found that Claimant ’s appeal from those Notices of

6 Our review of the Board’s decision is limited to determining whether necessary findings of fact are supported by substantial evidence, whether errors of law were committed and whether constitutional rig hts were violated. Chis h ko v. Unemployment Compensation Board of Review

, 934 A.2d 172, 17 6 n.4 (Pa. Cmwlth. 2007)

.5

Determina tion was filed via fax on August 22, 2014 , seven days after the final date

to file, and was therefore untimely. 7 Further, and n otwithstanding her contention

before this Court that she filed a timely appeal from the Referee’s decision s ,
Claimant also asser ts that the Board erred in its determination that the Referee’s

decisions were properly mailed to her last known post o ffice address . Claimant

offers no proof other than to state that she moved to her present address at 32

Wellington Road, U pper Darby, P ennsylvania in October, 2013; however, both the

Referee’s decisions mailed August 12, 2014 and the Board’s October 28, 2014

letter on timeliness were mailed to Claimant at 32 Wellington Road, Upper Darby,

PA. (R. Item 13, R. Item 15.)

In short, C laima nt offers no evidence whatsoever that she filed a

timely appeal in the matter before us. Her assertion that she filed a timely appeal is

entirely based on the information contained in a referee’s October 6, 2014 decision

and order that related solely to a different appeal, in which the referee determ ined

that on August 22, 2014 Claimant fi led a late appeal from a July 31 , 2014 Notice

of Determination. 8 Although Claimant’s Petitions for Review correctly reference

7 The Appeal Number referenced in the Referee’s Decision/Order attached to Claimant’s brief is

14

- 09

- B

- 8245. In that matter, the referee noted that Claimant appeared before her and testified as to the timeliness of her appeal from notices of determination and the referee concluded that the claimant “offered several versions of testimony related to timeliness, specifically that she

filed a t imely appeal on July 12, 2014, that she did not receive the determinations because they

were mailed to her old address, and finally she had issues with her mail. The Referee rejects the claimant’s testimony at the hearing as not credible related to the iss ue of whether the claimant filed a timely appeal or was otherwise prevented from doing so.” (Referee’s Decision/Order dated October 6, 2014, Attachment to Claimant’s Brief.)

8 In its brief, the Board notes that it processed a timely appeal to the refere e’s October 6, 2014 decision in Appeal No. 14

- 09

- B

- 8245 and states that it affirmed the referee in that matter. (Board’s Brief at 8 n.7.)6

the Board’s decision numbers in the matter before us and the dates on which those

decisions and orders were entered, Claimant’s brief incorrectly recites as the

“Order in Question” the text of the or der issued by the referee on October 6, 2014

in the separate appeal that is not before this Court

. (Claimant’s Brief at 3.)

Section 502 of the Law specifically provides that “[t]he referee’s

decision, and the reasons therefore...shall be deemed the final decision of the

board, unless an appeal is filed therefrom, within fifteen days after the date of su ch

decision...” 43 P.S. § 822. The referee’s decision becomes final, and the Board

does not have jurisdiction to consider the matter, if an appeal is not filed within the

15

- day period. Hessou v. Unemployment Compensation Board of Review , 942

A.2d 194, 197

- 98 (Pa. Cmwlth. 2008). Section 101.61(a) of the regulations

promulgated by the Department of Labor & Industry provides:

(a) If an appeal from a decision of the Department or an application for further appeal appears to have been filed beyond the applicab le time limit, the tribunal shall advise the appealing party in writing that it appears not to have a jurisdiction because of the late filing, and that the appeal or application for further appeal will be dismissed without a hearing unless the appealing pa rty notifies the tribunal in writing within the succeeding 15 days from the date of such notice, that he contends the appeal or application for further appeal was timely filed and that he desires a hearing. If no reply from the appealing party is received within the 15

- day period, or if the appealing party does not request a hearing, the tribunal shall dismiss the appeal or application for further appeal.

34 Pa. Code § 101.61 (a). Further, “the Board is without jurisdiction to further

consider the matter u nder [S]ection 502, and it is precluded from considering the

facts underlying the timeliness of appeal unless they are adduced at a hearing on7

that issue.” Han v. Unemployment Compensation Board of Review , 42 A.3d 1155,

1158 (Pa. Cmwlth. 2012).

We concl ude that the Board properly determined that Claimant failed

to request a hearing to offer testimony as to why her appeal s were timely or should

be deemed timely, and that her appeals were properly dismissed. Moreover, given

Claimant’s reliance on a filing date from a separate and distinct appeal that is of no

consequence in the matter before us, her assertion that she filed timely appeal s is

totally unsupported and without merit , and dismissal of her appeals as untimely is

mandated. Accordingly, the Board ’s orders are affirmed.

____________________________________ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Famatta M. Gwee, :

: Petitioner :

:

v. : No. 2429 C.D. 2014
: No . 2437 C.D. 2014

:

: Unemployment Compensation : Board of Review, :

: Respondent :

O R D E R

AND NOW, this 30 th day of December

, 201 5 , the order s of the

Unemployment Compensation Board of Review in the abov e

- captio ned matter s are

AFFIRMED

.

____________________________________ JAMES GARDNER COLINS, Senior Judge