IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jee Y. Eom

, :

Petitioner :

:

v. : No. 3 50 C.D. 2016

: Argued : October 17, 2016

Unemployment Compensation :

Board of Review, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE JOSEPH M. COSGRO V E, Judge

HONORABLE JAMES GARDNER COLINS

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: January 31, 2017

Jee Y. Eom (Claimant) petitions for review of an 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

501(e) of the Unemployment Compensation Law (Law), 43 P.S. § 821(e). 1 On

appeal, Claimant argues that the Board erred when it refused to consider the appeal

nunc pro tunc because the late filing of the appeal was due to non

- negligent

1 Act of December 5, 1936, Se cond Ex. Sess., P.L. (1937) 2897, as amended , 43 P.S.

§ 821(e) (providing for a 15

- day appeal period before a notice of determination is deemed final).2

circumstances. Based on the Board’s credibility determinations, we are

constrained to affirm.

Claimant filed an appli cation for UC benefits, which was denied by the

Local UC Service Center (Service Center) on the grounds Claimant voluntarily

quit his job with Aicos System (Employer) without necessitous and compelling

reason and therefore was ineligible for benefits under Section 402(b) of the Law. 2

(Notice of Determination, R. R. at 1. ) The Notice of Determination was mailed on

November 3, 2015. ( Id. ) Under the Law, Claimant had 15 days to appeal this

determination, which would have been November 18, 2015. 43 P. S. § 821.

Claimant’s Petition for Appeal was received via fax on November 20, 2015, two

days late. As a result, the appeal was dismissed as untimely.

A hearing was scheduled before the Referee on January 6, 2016, to hear

evidence concerning the timelin ess of the appeal, as well as on the merits. At the

hearing, Claimant acknowledged receiving the Notice of Determination and

discussing same with his attorney (Claimant’s Attorney)

. ( R.R. at 15

. ) Claimant’s

Attorney testified that he subsequently prepar ed and mailed the appeal sometime

between November 9 and November 13, 2015, when he was going out of town on

other business. ( R.R. at 16

- 17

. ) Claimant’s Attorney did not have any

documentation, such as a certificate of mailing, to support that the appeal was

mailed. ( R.R. at 16

. ) When he returned to the office on November 20, 2 015,

Claimant’s Attorney realized that he had not received a response to the appeal

, so

he completed another Petition for Appeal and faxed it to the Service Center. ( R.R.

at 16 ; Petition for Appeal, R.R. at 5

. ) Based upon the evidence presented, the

Referee found there was no evidence that Claimant was misinformed or misled by

2 43 P.S. § 802(b).3

UC authorities regarding his appeal rights or that he was prevented from filing a

timely appeal due to f

raud or a breakdown in the administrative process and

dismissed the appeal. ( Referee Decision at 2

. )

Claimant subsequently filed a timely appeal of t he Referee’s D ecision with

the Board , which affirmed. Specifically, the Board found Claimant ’s Attorney ’s

testimony that the appeal was mailed before the appeal deadline not credible

,

noting the lack of documentary evidence to support the allegation

. ( Board

Decision at 2 .) The Board also refused to find that Claimant ’s Attorney’s “failure

to file a timely appeal was non

- negligent.” ( Id. ) Given the mandatory nature of

the filing deadline and the absence of any evidence that would entitle Claimant to

an appeal nunc pro tunc , the Board found that the Referee properly dismissed the

appeal under Section 501(e) of the Law

. ( Id. ) Claimant now petitions this Court

for review of the Board’s Order. 3

On appeal, Claimant argues the Board erred in refusing to restore his

appellate rights nunc pro tunc

. Specifically, Claimant contends the late f iling was

the result of non

- negligent conduct by Claimant’s Attorney and that the appeal was

filed within a short time of discovering its untimeliness

. (Claimant’s Br. at 11

- 12.)

The Board responds that Claimant failed to establish a basis for relief nun c pro

tunc

. In particular, it notes the absence of any documentary evidence that would

support the testimony of Claimant’s Attorney that he mailed the appeal prior to

expiration of the filing deadline. (Board’s Br. at 6.)

3 “ 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).4

Section 501(e) of the Law gover ns appeals from a Notice of Determination

and states:

Unless the claimant or last employer or base

- year employer of

the claimant files an appeal with the board, from the determination

contained in any notice required to be furnished by the department

un der section five hundred and one (a), (c) and (d), within fifteen

calendar days after such notice was delivered to him personally, or

was mailed to his last known post office address, and applies for a

hearing, such determination of the department, with re spect to the

particular facts set forth in such notice, shall be final and

compensation shall be paid or denied in accordance therewith.

43 P.S. § 821(e). The failure to file an appeal within the requisite 15

- day time

period deprives the Board of jurisdic tion over the matter and the determination

becomes final

. Dumberth v. Unemployment Comp. Bd. o f Review , 837 A.2d 678,

681 (Pa. Cmwlth. 2003). Limited circumstances exist in which an untimely appeal

may be considered. Hessou v. Unemployment Comp. Bd. of Review , 942 A.2d

194, 198 (Pa. Cmwlth. 2008). Allowable exceptions include cases involving fraud,

a breakdown in the administrative process, or when there is a “non

- negligent

failure to file a timely appeal which was corrected within a very short time, du ring

which any prejudice to the other side of the controversy would necessarily be

minimal.” Bass v. Commonwealth , 401 A.2d 1133, 1135

- 36 (Pa. 1979). It is

under this third exception

– non

- negligent conduct

– that Claimant seeks to

proceed. 4

Claimant’s argument on appeal centers around the testimony of Claimant’s

Attorney, who maintains he mailed the appeal prior to leaving town on November

4 Claimant concedes there was no fraud or breakdown in the process. (Claimant’s Br. at

11.)5

13, 2015, well before the filing deadline. This testimony is the sole basis cited by

Claimant for his argument tha t the untimely filing was the result of non

- negligent

conduct of his attorney. ( See Claimant’s Br. at 11

. ) However, t he Board did not

credit this testimony. ( Board Op. at 2 .) It is well

- settled that th e Board i s the

ultimate fact finder. Walsh v. Unem ployment Comp. Bd. of Review , 943 A.2d

363, 368 (Pa. Cmwlth. 2008). In essence, on appeal Claimant is challenging the

Board’s determination not to credit the testimony , which is outside of this Court’s

province to overrule. “ T he burden to establish the right to have an untimely appeal

considered is a heavy one because the statutory time limit established for appeals is

mandatory. ” Hessou , 942 A.2d at 198. Because the Board did not credit the

testimony of Claimant’s Attorney, there was no credited evide nce showing non

negligent conduct beyond Claimant’s control that would have prevented the timely

filing of an appeal. Thus, Claimant has not satisfied his heavy burden to be

entitled to nunc pro tunc relief

.

Had the Board credited the testimony of Claim ant’s Attorney, the testimony

alone would be legally insufficient to entitle Claimant to nunc pro tunc relief under

our precedent

. Courts have consistently held that delivery issues with mail are

foreseeable. For instance, i n Criss v. Wise , a receptionist testified that she mailed

a notice of appeal from an arbitration award by depositing the notice in a mailbox

outside the office building six days before the filing deadline. Criss v. Wise

, 781

A.2d 1156, 1158 (Pa. 2001)

. The notice was rece ived two days after the filing

deadline, and one day after the prothonotary entered judgment on the arbitration

award. Id. The trial court denied the appeal, but the Superior Court vacated and

remanded the matter to the trial court to make factual findin gs as to whether nunc

pro tunc relief was warranted. Id. at 1158

- 59. The Pennsylvania Supreme Court6

reversed. It found that nunc pro tunc relief is reserved for only those “unique and

compelling cases in which the appellant has clearly established that she attempted

to file an appeal, but unforeseeable and unavoidable events precluded her from

actually doing so.” Id. at 1160

. Because “ delays in the U.S. mail are both

fore seeable and avoidable, ” the failure to anticipate potential delays in the mail

was not a non

- negligent circumstance that warranted nunc pro tunc relief. Id.

Faced with similar circumstances, this Court has likewise denied nunc pro

tunc relief. I n Lee v. Unemployment Compensation Board of Review (Pa.

Cmwlth., Nos. 421 C.D. 2013, 501 C.D. 2013, filed Oct. 16, 2013), claimant’s

attorney testified his paralegal mailed the appeal via certified mail and produced a

blank certified mail receipt. 5 The Court found this did not satisfy the requirements

of the Board regula tion, 34 Pa. Code § 10 1.82, which provide s that the filing date

of an appeal made by U.S. mail is determined as:

(i) The date of the official United States Postal Service postmark on

the envelope containing the appeal, a United States Postal Service

Form 3817 (Certificate of M ailing ) or a United States Postal Service

certified mail receipt.

(ii) If there is not official United States Postal Service postmark,

United States Postal Service Form 3817 or United States Postal

Service certified mail receipt, the date of a postage meter mark on the

envelope containing the appeal.

(iii) If the filing date cannot be determined by any of the methods in

subparagraph (i) or (ii), the filing date will be the date recorded by the

Department, the workforce in vestment office or the Board when it

5 Lee is an unreported panel decision of this Court, which is cited in accordance with

Section 414(a) of this Court’s Internal Operating Procedures, which provides that an unreported

panel decision issued by this Court after Januar y 15, 2008

, may be cited “for its persuasive value,

but not as binding precedent.” 210 Pa. Code § 69.414(a).7

receives the appeal.

Lee , s lip op. at 7

- 8.

In the absence of such evidence, the Court found the only physical evidence

to establish an appeal had been sent was the faxed appeal, wh i ch was received after

the filing de adline. Id. , slip op. at 8

- 9

. Thus, the Court affirmed the Board’s

determination that the appeal was untimely. Id. , slip op. at 9. See also Lord v.

Unemployment Comp

. Bd

. of Review (Pa. Cmwlth., Nos. 1566 C.D. 2011, 1567

C.D. 2011, 1568 C.D. 2011, 1569 C.D. 2011, filed June 4, 2012), slip op. at 7

- 8

(finding claimant’s testimony alone that he mailed his appeal within the statutory

time period did not satisfy the regulations); Jones v. Unemployment Comp

. Bd

. of

Review (Pa. Cmwlth., No. 1414 C.D. 2010, filed May 26, 2011), slip op. at 5

- 6

(finding same).

Applying these principles to the facts at hand, we must affirm the Board’s

dismissal of the Claimant’s appeal as untimely under Sect ion 50 1 (e) of the Law.

_____________________________________ RENÉE COHN JUBELIRER

, J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jee Y. Eom, :

Petitioner :

:

v. : No. 350 C.D. 2016

: Unemployment Compensation :

Board of Review, : Respondent :

O R D E R

NOW, January 31 , 201 7

, the Order of the Unemployment Compensation

Board of Review, entered in the above

- caption ed matte r, is hereby AFFIRMED

.

_____________________________________ RENÉE COHN JUBELIRER

, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jee Y. Eom

, :

Petitioner :

:

v. :

: Unemployment Compensation :

Board of Review, : No. 350 C.D. 2016

Respondent : Argued : October 17

, 2016

BEFORE: HONORABLE REN É E COHN JUBELIRER Judge

HONORABLE JOSEPH M. COSGROVE Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COSGROVE FILED: January 31, 2017

The analysis to be applied in determining whether Claimant's appeal

was timely is different from that governing the question of whether nunc pro tunc

relief should be granted. Since the Majority conflates these two discrete concepts,

I must dissent.

I agr ee that Claimant’s appeal was untimely. Altho ugh Claimant’s

attorney testified he mailed the appeal docum ents before the deadline, he presented

no additional information to verify this. A finding of untimeliness may be avoided

if certain proof is available showing that an appeal had been perfected by mail.

For example, 34 Pa.Code § 101.82(b)(1)(i)

- (ii) provides a part y may file a writtenJMC

- 2

appeal by U nited States mail. The filing date will be determined by the date of the

official United States Postal Service postmark on the envelope containing the

appeal, a United States Postal Service Certificate of Mailing, a United States Postal

Service certi fied mail receipt, or the date of a postage meter mark on the envelope

containing the appeal.

Claimant was unable to provide any such proof of the filing of the

earlier appeal; all he could present was the testimony of his counsel that the appeal

had been mailed prior to the deadline.

In considering the timeliness argument, the Board had littl e choice but

to ignore or “not credit” this testimony

, (Reproduced Record at 39), consistent with

this Court’s decision in McKnight v. Unemployment Comp ensation Board of

Review, 99 A.3d 946 (Pa. Cmwlth. 2014). In McKnight

, this Court was asked to

expand the forms of proof acceptable to establish that an appeal had been mailed

timely by including testimony that indeed the appropriate mailing had occurred.

We rejected t hat argument, noting that Section 101.82(b) was a Board regulation

which, as interpreted by the Board, 1 “does not contemplate testimony as adequate

proof of mailing...” Id at 949. Against this backdrop, the Board was correct in

finding Claimant’s appeal un timely.

Where the Majority errs is in applying this same principle to the

question of whether nunc pro tunc relief should be granted. While "timeliness" is

1 “[A] court should defer to an administrative agency’s interpretation of its own

regulation unless such interpretation is clearly erroneous or is inconsistent with the statute under

which it was promulgated.” UG I Utilities v. Unemployment Compensation B oar d of Review, 776

A.2d 344, 348 (Pa. Cmwlth. 2001).JMC

- 3

strictly bound by regulatory provisions which set specific and definite deadlines,

and limit the av ailability of proof to determine that timeliness, permission to

pursue an appeal nunc pro tunc is tied to equitable considerations. "Even when a

party has filed an untimely notice of appeal, however, appellate courts may grant a

party equitable relief in the form of an appeal nunc pro tunc in certain

extraordinary circumstances." Criss v. Wise

, 781 A.2d 1156, 1159 (Pa. 2001). 2

An appeal nunc pro tunc may thus be allowed when a delay in filing

the appeal is caused by extraordinary circumstances, including the non

- negligent

conduct of the appellant’s attorney or his staff. Cook v. Unemployment Comp. Bd.

of Review, 671 A.2d 1130, 1131 (Pa. 1996). Claim ant argues that his attorney was

not negligent in filing his appeal. (Claimant’s Brief at 11.) Claimant’s attorney

testified that he sent the appeal via U.S. Mail prior to the expiration of the appeal

date, but could not provide any evidence of this mail ing other than his testimony.

(R.R. at 16.) While the Board rightly refused to "credit" this testimony in

considering whether the appeal was "timely," it did not find that this testimony was

not credible. 3 As such, in considering the second question as to whether an appeal

2 In Criss, an appeal from a compulsory arbitration award was mailed six days before the

deadline for filing same, but was not received until after the deadlin e expired. The Supreme

Court held that since "delays in the U.S. mail are both foreseeable and avoidable, Appellee's

failure to anticipate a potential delay in the mail was not such a non

- negligent circumstance for

which an appeal nunc pro tunc may be gra nted." Criss

, 781 A.2d at 1160. Criss

, however,

involved the Rules of Civil Procedure (i.e., appeal from an arbitration award) which, unlike

Section 101.82(b), do not deem an appeal perfected once mailed but instead state that "[a] paper

sent by mail sha ll not be deemed filed until received by the appropriate officer." Pa.R.C.P. No.

2015.1. As such, while it is important in recognizing the equitable nature of nunc pro tunc relief,

the ultimate holding in Criss is inapplicable to this case despite the Ma jority’s reliance on it.

3 In Quinn v. Unemployment Compensation Board of Review, (Pa. Cmwlth. 1238 C. D

. 2014

, filed January 23, 2015) 2015 WL 5123418

, the claimant testified that she “placed herJMC

- 4

nunc pro tunc should be permitted, the Board was faced with uncontradicted

testimony from an officer of the court that he had mailed the appeal (albeit without

additional proof of mailing such as a Postal Service Certificate of Mailing or a

private postage meter stamp) prior to the expiration of the deadline. On this

question, the attorney's testimony is both relevant and suggests no negligence on

his part in pursuing his client's appeal.

In seeking an appeal nunc pro tunc

, a party m ust show that the late

appeal was caused by non

- negligent circumstances related to him/her or to counsel,

that the appeal was filed within a short time after the party or counsel had an

opportunity to address the untimeliness, the period that elapsed was o f a short

duration, and the appellee was not prejudiced by the delay. Cook

, 671 A.2d at

1131. In this case, Claimant’s attorney testified that he mailed the appeal before he

went “out of town on other business” (R.R. at 16) and prior to the deadline. Up on

his return, Claimant’s attorney filed the appeal electronically, two days after the

appeal deadline. Id. Pursuant to Cook

, Claimant has satisfied his burden. 4 Under

appeal in the mailbox at her post office” one day before it was due. However, the appeal did not

arrive until a day after the due date. While the Board made a specific finding that the claimant’s

testimony regarding her mailing of the appeal was not credible, we noted that under Section

101.82(b)(1)(ii), “even if found credible by the Board, [the testimony] would be insufficient to

establish that [the claimant’s] appeal was timely filed.” Id. at 2015 WL 5123418

, Slip Op. at 2.

Although unpublished and thus not binding, it is important to note that Quinn differs from this

case in two important respects. First, although the Quinn claimant’s testimony was irrelevant

under the regulation as to the timeliness question, it would have been important if the claimant

had sought permission to appeal nunc pro tunc

. Unlike the present Claimant, the Quinn claimant

did not. Further, while the Board made the specific finding that the Quinn claimant’s testimony

was “not credible,” it made no such finding presently. Accordingly, the present Claimant’s

testimony is rel evant and important to consideration of the request to appeal nunc pro tunc

.

4 Respondent’s brief makes no argument that it was prejudiced by the late filing.JMC

- 5

these circumstances, it was thus error for the Board to deny Claimant's nunc pro

tunc appeal. The Majority errs in upholding this denial, and in constricting the

equitable principles upon which nunc pro tunc relief is considered. Criss

. I must

therefore dissent.

___________________________ JOSEPH M. COSGROVE, Judge