IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maria Torres , :

Petitioner :

: No s

. 67 , 68 & 69 C.D. 2016
v. : : Submitted: July 1, 2016 Unemployment Compensation : Board of Review , :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: November 7, 2016

Maria Torres (Claimant), p roceeding pro se , petitions for review of the December 8, 2015 order of the Unemployment Compensation Board of Review (Board), 1 which affirmed a referee’s decision dismissing her appeal as untimely pursuant to section 501(e) of the Unemployment Compensation Law (Law)

. 2 We
vacate and remand for additional fact

- finding

.

1 The Board filed three separate orders, all dated December 8, 2015, dismissing Claimant’s appeals as untimely. Hence, Claimant filed three separate appeals with this Court which we consolidated.

2 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

The relevant facts and procedural history of this case are as follows.
Claimant filed an initial application f or unemployment compensatio n benefits
effective November 16, 2008, providing a mailing address of 1354 R iverside Drive, Philadelphia, Pennsylvania , 19154. 3 As part of the application process, the local service center sent Claimant a handbook, which advise s applicants that they are required to report a change of address t o the local service center. Nearly one year
later , Claimant established a new unemployment compensation claim effective November 15, 2009, based upon her separation from employment with RG IS Inventory Specialist (Employer). (Findings of Fact Nos. 1

- 3.)

After Claimant received and exhausted her unemployment benefits, she
filed for and received benefits under what has been referred to as the Emergency Unemployment Compensation Act (EUC Act) 4 for the weeks ending September 18, 2010, until July 2, 2011. However, Claimant relocated to a different address sometime in 2010, and her current address is 10027 Ferndale Street, Apt #2,
Philadel phia, Pennsylvania , 19116. Upon relocating to this a ddress, Claimant updated her mailing address with the U.S. postal service, but did not provide an updated mailing address to the local service ce nter. ( Finding of Fact No . 4 .)

Approximately one year and two months after Claimant stopped receiving benefit s, the local service center mailed Claimant a variety of notices of

3 It is not readily apparent who Claimant’s separating employer was as part of her initial application, but this fact is not relevant to our curre nt analysis.

4 See Title IV of the Supplemental Appropriations Act of 2008 , Act of June 30, 2008, P.L. 110

- 252, as amended, Sections 4001

- 4007, 26 U.S.C. § 3304 Note. In relevant part, s ection 4001(b ) of the EUC Act states that a “ [t]he State will make payments of [ EUC benefits] to individuals wh o

. . . have exhausted all rights to regular compensation under the State law or under Federal law wi th respect to a benefit year . . . .” 26 U.S.C. § 3304 Note.3

determinations on September 12, 2012, at her last known address in its record s , 1354
Riverside Drive . In th ese determinations, the local service center concluded, inter
alia , that Claiman t was ineligible for unemployment benefits and EUC benefits and assessed fault and fraud overpayments in the total amount of $17,582.00. The final day to appeal these determinations was September 27, 2012 , although two of the determinations incorrectly li sted September 26, 2012, as the final day to appeal. The notices of determinations were not returned by the U.S. postal authorities as
undeliverable. ( Findings of Fact N os. 8

- 11 , 13 ; Record Item No. 2. )

In August 2015 , Claimant discovered that her Feder al Income Tax Refund for the 2015 tax year was being intercepted by the Commonwealth due to an issue with her prior claims for unemployment compensation benefits. On August 11, 2015, Claimant contacted the local service center, was advised of the appeal p rocess, and filed an appeal via facsimile transmission on that same date. ( Findings of Fact
Nos. 14

- 16.)

The referee convened a hearing at which Claimant testified that , after she got married , she moved to her current address in 2010 and updated her mailing
addres s with the U.S. postal service. Claimant stated that the postal service did not
forward the notices of determinations to her new address

. ( Finding of Fact No. 7; Notes of Testimony (N.T.) at 7.)

In its decision, the referee determined that “[t]here is insufficient competent evidence in the hearing record ” to permit Claimant to file an appeal nunc pro tunc

. ( Finding of Fact No. 17.) Critically, the referee explained:

In the present case, the competent documentary evidence of record establ ishes [that] the [local service center] mailed the adverse Notices of Determinations . . . to Claimant’s last known mailing address . . . and there is no indication in the hearing record that said Determinations were returned by4

the postal authorities as u ndeliverable. Therefore, the Determinations are presumed to have been received. Claimant’s appeal contained in the certi fied record was untimely. While the [r]eferee notes the discrepancy regarding the appeal deadlines listed on . . . the Determinations , said issue does not impact or otherwise prevent Claimant from filing a timely appeal as Claimant’s rationale for failing to file a timely appeal was due to her alleged failure to receive the Determinations or become aware of them until August 2015.

He re, Claimant contended that she relocated to her current address of record sometime in 2010 and that she updated her mailing address with the U.S. postal authorities. However, Claimant admitted that she did not update her mailing address with the [local s ervice center ] even though she continued to receive benefit s until July 2011. As such, to any extent that Claimant’s presumption of receipt of the Determinations has been rebutted
, it must reasonably be inferred that any failure on Claimant’s part to rece ive the Determinations was due to Claimant’s negligence in failing to update her mailing address with [the local service center] as required

. . . . (Referee’ s decision at 3 ) (emphasis supplied). On this reasoning, the referee dismissed Claimant’s appea l as untimely under section 501(e) of the Law.

Claimant appealed and the Board affirmed, adopting and incorporating the referee’s factual findings and legal conclusions. Notably, neither the referee nor the Board made any credibility determinations with respect to Claimant’s testimony
, concluding instead that Claimant failed to present sufficient evidence as a matter of
law to allow an appeal nunc pro tunc

.5

Before this Court, 5 Claimant argues that she moved in 2010 , 6 updated
her mailing address with the U.S. postal service , and never received the notices of
determinations. Claimant contends that she tried to obtain a hard copy of her address change and forwarding reque st , but the U.S. postal service informed her that they could not retrieve these documents because they are stored for no more than two
years. In pertinent part, section 501(e) of the Law provides that an appeal from a notice of eligibili ty 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 addre ss.” 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. 200 9).

When notice is mailed to a c laimant’ 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. Mi helic 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

5 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 12 2, 126 n.3 (Pa. Cmwlth. 2015).

6 In her brief, Claimant states that she moved in 2012. Regardless of whether this is an accurate statement or an error, the evidence of record can only support a finding that she moved in 2010. ( See N.T. at 7.)6

options: either the notic e 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. at 41.

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). “A n appeal nunc pro tunc may be permitted when a delay in filing the appeal is caused by extraordinary circumstances involving fraud, administrative breakdown, or non

negligent 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 (Pa. Cmwlth. 2008). An a ppellant 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 beyon d [her] control caused the delay.” Hessou , 942 A.2d at 198

.

Here, the Board, in adop ting the referee’s findings and conclusions, determined, at least initially , that Claimant is presumed to have received the notices
of determinations because the local service center mai led the notices to Claimant at
her la st known address and the notices wer e not returned as undeliverable. However,
the Board also determined (or seemingly believed ) that Claimant rebutted the presumption of receipt, ostensibly based on the fact that she updated her address w it h the U.S. postal authorities. See Referee’s de cision at 3 (“[T] o any extent that Claimant’s presumption of receipt of the Determinations has been rebutted . . . .”).
N onetheless , the Board faulted Claimant for failing to update her mailing address7

with the local service center and deemed this to be th e reason, or cause

- in

- fact , for her not receiving the determinations

. Se e id. (“[A] ny failure on Claimant’s part to receive the Determinations was due to Claimant’s negligence in failing to update her mailing address with [the local service center] as required [.] ”).

In embodying this analysis, though, the Board apparently presumed that

a nunc pro tunc appeal can only lie where a claimant updates her address with the
local service center and there is an administrative breakdown attributable to the wrongful or negligen t conduct of the unemployment compensation authorities.
However , o ur c ase law is much more expansive, permitting a nunc pro tunc appeal in situations where a third party

– not just the appar atus of the unemployment office

– commits negligence and that negligence results in a claimant not receiving notice in a timely fashion.

T his Court has held that i f the Board properly send s notice, but there was some intervening negligence by a third party, then an appeal nunc pro tunc is appropriate

. Bradley v. Pennsylvania Board of Probation and Parole , 529 A.2d 66 , 67 ( Pa. Cmwlth. 198 7). In point of fact, “ [n] unc pro tunc relief may be granted where there is evidence of a breakdown in the postal system. ” Nationwide Insurance Company v. Pennsylvania Insurance Department , 779 A.2d 14, 16

- 17 (Pa. Cmwlth. 2001) (citing Walker v. Unemployment Compensation Board of Review , 461 A.2d
346 (Pa. Cmwlth. 1983) ).

In Walker , a referee denied a claimant benefits and the decision, accompanied by notice that t he claimant had fifteen d ays to appeal to the Board, was mailed to the claimant’s la st known address. Notably , the r egulations at the time stated, and continue to state , that notices sent “at [the parties’] known addresses as furnished by the parties to the referee, the Board, or the Department shall constitute8

notice of the matters ther ein contained , ” 34 Pa. Code § 101.53 (adopted August 26, 1970, effectiv e August 27, 1970, 1 Pa.B. 435) , and placed a duty on the claimant to update a change of address with the unemployment authorities, see Gadsden v. Unemployment Compensation Board of Revi ew , 479 A.2d 74, 75

- 76 (Pa. Cmwlth. 1984).
The claimant in Walker filed an untimely appeal and testified before a referee that he had requested the postal service to forward his mail to another address but, because the postal service had failed to do so, the referee’s decision and appeal instructions were not received until late in the appeal period. The Board determined
that the claimant’s appeal was faci ally untimely. When the case came up to this Court, we concluded that the Boar d erred in dismissing the claimant’s appeal on the ground that the claimant failed to show that the untimely appeal was due to non

negligent circumstances. Ultimately, and despite the fact that the claimant did not update his addr ess with the unemployment authorities as required by 34 Pa. Code §101.53 , we vacated the Board’s decision and remanded to the Board to issue factual findings regarding the claimant ’s allegation that he failed to file his appeal timely because the post office failed to honor his re quest to forward his mail. S ee also Verdecchia v. Unemployment Compensation Board of Review , 657 A.2d 1341, 1343

- 44 (Pa. Cmwlth. 1995 ) (concluding that the employer had “proper cause” for an
addition al hearing where the employer testified that it did not receive notice of the hearing because it requested the post office to forward its mail and “ the post office held some of the mail for as long as six weeks before delivering it

. ” )

.

Significantly , here, the Board did not make any specific credibility
determi nation or finding of fact with respect to Claimant’ s testimony that she updated her mailing address with the U.S. postal service , but the postal service did not9

forward the notices of determinations. Under Walker , and also as recognized by our Supreme Court, this testimony, if credited, could warrant a nunc pro tunc appeal

. See
Criss v. Wise , 781 A.2d 1156, 1160 (Pa. 2001) (citing Walker favorably for the proposition that the “ U.S. Postal Service’ s f ailu re to forward notice of referee’s decision to appellant’ s address, as appellant had requested, warranted appeal nunc pro tunc .”); s ee also J.A. v. Department of Public Welfare , 873 A.2d 782, 786 (Pa. Cmwlth. 2005) (stating that, if accepted as true, an appellant’s allegation that she was living in a homeless shelter at the time the notice was mailed, and that the shelter’s staff failed to provide her with the notice, “might be sufficient to permit a nunc pro

tunc appeal.”).

T his case is materially indistinguishable from Walker and the need to consistently apply our precedent is compelling , especially in a situation where Claimant is being back assessed for over $17,000.00. I mportantly, without an assessment of the substance of Claimant’s testimony or credibility, the Board found that Claimant failed to present sufficient evidence as a matter of law to warrant nunc pro tunc relief

. If failure to update an address with the un employment authorities

was a per se fatal fact that commands denial of nunc pro tunc relief, as the Board suggest s , then this Court in Walker would not have remanded for additional fact

finding concerning the U.S. postal service’s failure to forward mail. In deed, if the
Board were to find that the U.S. postal service failed to forward Claimant’s mail, this
fact would be the actual and superseding cause for t he delay in filing the appeals, and Claimant’s failure to update her address with the unem ployment authorities would, in essence, be irrelevant

. 7 This conclusion is compelled by our holding in Walker

.

7 Although the post office typi cally forwards mail for a period not to exceed eighteen months, see id. at 507.2.1.1

— 507.2.1.3, if Claimant’s request for forwarding had expired at the time (Footnote continued on next page...)10

Moreover, the peculiar circumstances of this case are factually significant , where : the notices of determinations were not sent to Claimant until a year and two months (approximately) after she stopped receiving benefits and her relationship with the unemployment office apparently ceased; the hard copy of Claimant’s change of address form would no longer be on file with the U.S. post
office at the tim e of the hearing; and the notices were not returned as undeliverable to the local service center with an “unable to forward” endorsement. See Section 507.2.1.1 of the Mailing Standards of the United States Postal Service, Domestic Mail
Manual (2016) (“Rec ords of permanent change

- of

- address orders are kept by city delivery Post Offices for 18 months[.]”); see id. at Section 507.1.4.1 (stating that
nonmailable pieces are returned to the sender with an endorsement stating “Not
Deliverable as Addressed

— Unable to Forward” in situations where the “[m]ail is undeliverable at [the] address given; [there is] no change

- of

- address order on file; [or the] forwarding orde r [has] expired.”).

In other words, if Claimant gave notice of change of address to the U.S. post office, the notices would be forwarded by the U.S. post office to that address , returned to the sender (the local service center) for no known address, or “lost” in the
mail . But, here, the record is lacking of any discussion of this issue by the Board. Compounding matters , in the reasoning section of t he referee’s decision, which was

( continued...)

the local service center sent the notices, the notices would have been returned as undeliverable with an endorsement stating that Claimant’s forwarding order had expired. B ecause the notices were not returned to the local service center as undeliverable, it could reasonably be inferred that Claimant’s forwarding request remained in effect when the notices were sent . However, it is up to the Board, as fact

- finder, to resolve these factual issues and determine whether Claimant received the notices (that is, failed to rebut the presumption of receipt) or if the notices were lost somewhere along the way as the result of mishandling by the postal authorities.11

adopted by the Board , the referee did not make any clear pronounceme nt as to whether Claimant actually rebutted the evidentiary presumption of receipt. And the Board did not render any specific credibility determination or finding of fact regarding whether Claimant did, as a matter of fact, rebut the presumption of recei pt. This inquiry is naturally dependent on the weight and persuasive value, if any, tha t the Board would assign to Claimant’s testimony and is absolutely vital for proper disposition of this case

.

For instance, i f the Board were to determine that Clai mant’s testimony,
and the corroborating circumstances as the case may be, are convincing enough to override the presumption , the Board should grant nunc pro tunc relief so long as the other requirements are met. See Criss , 781 A.2d at 1159 (listing requirements for
nunc pro tunc relief). On the other hand, i f the Board were to determine that the
evidence of record does not possess such characteristics, then the Board should deny
Claimant nunc pro tunc relief. In all events, the Board must make this determination
as the fact

- finder.

“ Our scope of review precludes this Court from making factual findings and credibility determinations, and we will not infer credibility determinations from
the decision of the fact

- finder against the party with the burden of proof .” Miller v. Unemployment Compensation Board of Review , 131 A.3d 110, 115 n.7 (Pa. Cmwlth. 2015). “ Where the Board fails to make necessary findings and credibility determinations, we must remand to the Board. This is especi ally true where the evidence, if credited, would change the outcome of the case. ” Id. at 115.

A ccordingly, we vacate the Board’ s order and remand for the Board to make the necessary credibility determinations and/or factual findings outlined above.12

The Board shall then issue a new decision that accounts for its credibility
determination s a nd additional findings of fact.

________________________________ PATRICIA A. McCULLOUGH, Judge

Senior Judge Pellegrini dissents.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Maria Torres, :

Petitioner :

: No s . 67 , 68 & 69 C.D. 2016
v. : : Unemployment Compensation : Board of Review , :

Respondent :

ORDER

AND NOW, this 7th day of November , 201 6 , the December 8, 2015 order of the Unemployment Compensation Board of Review (Board) is vacated
and the case is remanded for the Board to make credibility determinations and/or factual findings as discussed in this memorandum opinion

. The Board shall then
issu e a new decision that accounts for its credibility determination s and additional findings of fact.

Jurisdiction relinquished.

________________________________ PATRICIA A. McCULLOUGH, Judge