IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jessica H. Davis, :

Petitioner :

: v. : No. 1932 C.D. 2017
: SUBMITTED: June 15, 2018 Unemployment Compensation : Board of Review, :

Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK , Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE CEISLER FILED: July 25, 2018
Jessica Davis (Claimant) petitions pro se for review of the Novem ber 17, 2017 order of the Unemployment Compensation Board of Review (Board), affirming the Referee’s dismissal of Claimant’s appeal as untimely under Section 501(e) of the Unemployment Compensation Law (Law). 1 We affirm. Background
Claimant was employed by Charlotte Russe (Employer) from May 10, 2010 until August 25, 2010. Notes of Testimony (N.T.), 9/27/17, Ex. No. 7. On December 20, 2010, Claimant filed for unemployment compensation (UC) benefits.
Id. Claimant was initially granted bene fits, but was subsequently deemed ineligible by the Allentown UC Service Center (Service Center) under Section 402(b) 2 of the

1 Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S. § 821(e). 2 43 P.S. § 802(b).2

Law because Claimant voluntarily left work without a “necessitous and compelling
reason.” Id. , Ex. No. 4. The Service Center fur ther found Claimant ineligible for benefits because her wages did not meet the income threshold set forth in Section 401(f) 3 of the Law

. Id. A notice of d etermination was mailed to Claimant o n October 27, 2011

. Id. T he last date to appeal the determinat ion was November 14,
2011. Id. Claimant received a second determination , also mailed on October 27, 2011, which indicated a fault overpayment in the amount of $3,952.00 was established pursuant to Section 804(a) 4 of the Law. Id. , Ex. No. 5

. The last da te to appeal this second determination was also November 14, 2011. Id. Both
determinations were mailed to Claimant at 114 South 6 th Street, Apartment B, Allentown, P ennsylvania 18101 (Allentown address)

. Id. , Ex. Nos. 4

- 5. Neither
determination was returned as undeliverable. Id. , Ex. No. 7. Approximately 6 years later, on July 3, 2017, following receipt of a subsequent notice from the Department of Labor and Industry (Department) relating
to the fault overpayment, Clai mant spoke on the phone with a Department representative. 5 N.T., 9/27/17, at 7. During that conversation, Claimant was made aware of the option to file an appeal. Id. On September 5, 2017, Claimant filed an appeal from the October 27, 2011 determinatio n s , alleging she never received the m

.

3 43 P.S. § 801(f).

4 43 P.S. § 874(a). Section 804(a) of the Law provides that a claimant , who by reason of his or her fault receives UC benefits to which he or she is not entitled , shall be liable to repay those amounts.

5 The Claim Record indicates that a notice mailed to Claimant in November 2015 was returned as undeliverable. N.T., 9/27/ 17, Ex. No. 7. It is not clear from the record whether the notice which prompted Claimant to contact the Department on July 3, 2017 was mailed to the Allentown address or elsewhere. Claimant’s address on file with the Department was changed on July 3, 20 17. Id.3

N.T., 9/27/17, Ex. S ervice C enter No. 2. The Referee conducted a hearing on September 27, 2017

. Claimant participated by telephone. 6 Testimony was limited to the timeliness of Claimant’s appeal. At the hearing, Claimant denied receiving the October 27, 2011
determinations but acknowledged that the Allentown address on the determinations

was correct and that it was the same address she used when completing her initial application for benefits . N.T., 9/27/17, at 6

. Claimant testified she moved f rom the
Allentown address at the end of September 2013. Id. While Claimant asserted her
landlord would not allow her to receive mail at th e Allentown address, she admitted that “[s]ome stuff would come through . . .

. ” Id. Claimant acknowledged having
received documents from the Department of Labor and Industry (Department) which
related to the initial grant of benefits. Id. Claimant testified she was living “between there and college” at that time ; however, Claimant ’s mother also lived at th e Allentown address and she “could have” obtained Claimant’s mail for her. Id. at 8.
The Referee issued a decision in which she found that the determinations were sent to Claimant’s last known post office address and not returned by postal
authorities as undeliverable. C ertified Record (C .R. ) , Item No. 8, Referee’s Decision, Finding s of Fact (F.F.) Nos. 3

- 4. The Referee further found that the last date upon which a valid appeal could be filed was November 14, 2011 , but C laimant did not file an appeal until September 5, 2017. Id. , F.F. Nos. 6

- 7. Additionally, the
Referee found that Claimant was not misinformed or misled regarding the right of or need to appeal, and Claimant’s late appeal was not caused by fraud or its

eq uivalent by administrative authorities, a breakdown in the system, or non

-

6 A representative of Employer, Laurie Esarco, was present for the hearing ; however, she gave no testimony and declined to cross

- examine Claimant.4

negligent conduct. Id. , F.F. Nos. 8

- 9. Consequently, the Referee dismissed Claimant’s appeal. Id. at 3. Claimant appealed to the Board, asserting she filed her appeal once she became “aware of this situation.” C.R., Item No. 9, Claimant’s Petition for Appeal. She further argued the merits of her underlying appeal, maintaining she did not quit her employment. The Board issued an order in which it adopted and incorporated
the f indings and conclusions of the Referee

. C.R., Item No. 11, Board’s Order. The
Board noted that, even if it accepted Claimant’s testimony that the landlord for the
Allentown address would n o t permit Claimant to receive her mail there, Claimant

was aware o f the overpayment determination on July 3, 2017 but waited more than two months to file her appeal. Accordingly, the Board affirmed the dismissal of Claimant’s appeal. This appeal followed.
Issue On appeal, 7 the sole issue before this Court is whether t he Board erred in dismissing Claimant’s appeal as untimely

. Discussion Section 501(e) of the Law requires a claimant to file an appeal from a Department determination within 15 days of the date of mailing to the claimant’s last known post al address

. 43 P.S. § 821(e). The statutory time limit for filing an appeal is mandatory in the absence of fraud or manifestly wrongful or negligent conduct by an agency. Das v. Unemployment Comp

. B d. of Review , 399 A.2d 816 (Pa. Cmwlth. 1979). Further, a timely ap peal is a jurisdictional prerequisite.
DiI enno v. Unemployment Comp

. B d. of Review , 429 A.2d 1288, 1289 (Pa. Cmwlth.

7 Our scope of review is limited to determining whether constitutional rights were violated, wheth er an error of law was committed, or whether the necessary factual findings are supported by substantial evidence. Johns v. Unemployment Comp. Bd. of Review , 87 A.3d 1006, 1009 n.2 (Pa. Cmwlth. 2014).5

1981). If the claimant does not file an appeal w ithin 15 days, “ the determination becomes final, and the [Department] does not have the r equisite jurisdiction to
consider the matter .” Vereb v. Unemployment Comp. Bd. of Review , 676 A.2d 1290, 1292 (Pa. Cmwlth. 1996) ( en banc ). An appeal nunc pro tunc may be allowed where the delay in filing the appeal was caused by extraordinary circumstances involving fraud or some breakdown in the administrative process, or non

- negligent circumstances related to the petitioner, her counselor or a third party. Cook v. Unemployment Comp. Bd. of Review , 671 A.2d 1130, 1131 ( Pa. 1996)

. The petitioner “ must also establish that (1) the appeal was filed within a short time after learning of and having an opportuni ty to address the unti meliness ; ( 2) the elapsed time period was of very short duration ; and ( 3) the [ respondent ] is not prejudiced by the delay. ” Sofronski v. Civil Service Com m ’n v. Phila

. , 695 A.2d 921, 924 (Pa. Cmwlth. 1997). Claimant does not dispute her appeal was not filed within 15 days of the October 27, 2011 mail date , n or has she alleged the existence of fraud or a breakdown in the administrative process. Claimant has not challenged whether the Department mailed the determinations to the Allentown address or claimed the
determinations were returned as undeliverable . Ra ther, she alleges the landlord for the Allentown address would not permit Claimant to receive mail at that address
because Claimant was not on the lease. Claimant also asserts she was away at

c ollege and not physically living at the Allentown address to which the Department
mailed its determinations. Upon graduating college , Claimant moved to Germany

. Consequently, Claimant state s she would not have known if mail was left for her at
the Allent own address. The Board responds that , if Claimant was unable to receive mail at the address she provided to the Department, Claimant was responsib le for providing a different6

address

. Further, the Board maintains that , even if it could be presumed Clai mant did not receive the determinatio ns, Claimant was aware of the overpayment determination on July 3, 2017 when she spoke to a Department representative on the phone . Claimant filed her appeal more than two months after that date, which was not “within a short time” after learning of the untimeliness of her appeal

. Sofronski , 695 A.2d at 924. Therefore, the Board argues , Claimant has not established a right

to nunc pro tunc relief. We agree that Claimant ’s untimely appeal was caused by her own conduct. When testifying at the September 27, 2017 hearing, Claimant stated that the
Allentown address she used when applying for benefits was correct. Claimant did not move from that address until September 2013. Whether or not Claimant’s landlord prev ented her mail from being collected at that address, it is clear from Claimant’s testimony she believed that to be the case. Never theless, Claimant failed to provide an alternative address to the Department. If a more appropriate address for the receipt of her mail existed, Claimant was responsible for providing one. The record fails to reveal any fraudulent or manifestly wrongful or negligent conduct on the part of the Department, nor does it appear Claimant’s untimely appeal was caused by a breakdown i n the administrative process. As Claimant’s untimely appeal was not caused by non

- negligent circumstances, we need not address whether her appeal was filed within a short time after she learned of the need to appeal. 8

8 We must express concern regarding the procedural pr ocess utilized by the Department in matters that involve a revocation of benefits. In the present matter, Claimant was granted benefits for claim weeks ending January 1, 2011 through June 25, 2011. C.R., Item No. 1, Claim Record, at 1. On July 10, 2011, Claimant received payment for the claim week ending June 25, 2011. Id. Over three months later, on October 27, 2011, the Department mailed Claimant the overpayment determination. Id. , Item No. 2. While three months is not an extraordinarily lengthy pe riod of time, Claimant would have had no reason to expect further communication from the Department, as her receipt of benefits had terminated. A fairer process would involve the initiation of7 Conclusion
As we have concluded C laimant’s untimely appeal was caused by her own negligent conduct, and giv en the lack of evidence of fraud, wrongful or negligent conduct, or a breakdown in the administrative process, w e perceive no error in the Board’s dismissal of Claimant’s appeal as untimely. Accordingly, the order of the
Board is affirmed.

__________________________________ ELLEN CEISLER, Judge

revocation proceedings, through which the Department would ens ure a claimant has received actual notice of the existence of an issue regarding a grant of benefits, prior to the issuance of a determination finding an overpayment has been made.IN THE COM MONWEALTH COURT OF PENNSYLVANIA

Jessica H. Davis, :

Petitioner :

: v. : No. 1932 C.D. 2017
: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 25 th day of July, 201 8 , the order of the Unemployment Compensation Board of Review, dated November 17, 2017 , i s affirmed.

________________________________ ELLEN CEISLER, Judge