IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Juermal O. Evans, :

Petitioner :

:

v. : No. 739 C.D. 20 1 6 : Submitted: December 16 , 20 1 6 Unemployment Compensation : Board of Review, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Pr esident Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR J UDGE PELLEGRINI FILED: January 19, 2017

Juermal O. Evans (Claimant) petitions pro se for review of an order o f

the Unemployment Compe nsatio n Board of Review (Board) affirming the decision

of an unemployment compensation referee (Referee) finding his appeal untimely

under Section 501(e) of the Unemployment Compensation Law (Law). 1 Finding

no error in the Board’s decision, we affirm.

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

. Section 501(e) of the Law provides:

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 under section five hundred and one (a), (c) and (d), within fifteen (Footnote continued on next page...)2 Claimant was employed part

- time by Erie Bayfront Convention

Center (Employer) as a server when she had to take a temporary leave of absence

due to medical issues. She was under a doctor’s care from January 2 015 to

September 2015. On September 17, 2015, she notified Employer that she was able

a nd available to return to work ; however, the restrictions imposed by her treating

physician were so great that Claimant was unable to accept any type of work

.

After she applied for benefits, o n September 24, 2015, the Erie UC

Service Center (Service Center) mailed Claimant a Notice of Determination

denying her benefits because she was not able or available for suitable work for the

majority of the work week for compensable week s ending Septembe r 12, 2015

, or

the following week

. In that no tice, Claimant was informed that October 9, 2015

,

was t he last day to appeal the Service Center’s determination. The notice was

mailed to Claimant’s last known mailing address and there was no evidence that

th e notice was returned as undeliverable by the post office. Claimant faxed her

appeal on January 12, 2016

, and a hearing was set to determine the timeliness of

her appeal.

(continued...)

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 respect to the particular facts set forth in such notice, shall be final and compensation shall be paid or denied in acco rdance therewith.

(Emphasis added). If an appeal is not filed within 15 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.2 d 1286, 1288 n. 1 (Pa. Cmwlth. 2009).3 Before the Referee, 2 Claimant testified that the mailing address to

which the Servi ce Center mailed the Notice of Determination was accurate but that

she did not recall whether she received it around the time that it was mailed. She

testified that when she did receive and read through the notice, she did not observe

the deadline to appe al. She stated that she called and spoke with someone at the

Service Center about the notice and mailed in an appeal before the Service Center

mailed the notice . However, t he Service Center’s claim record file show s that the

notice was mailed on Septembe r 24, 2015, that Claimant spoke with someone at

the Service Center on September 28, 2015 , and that her appeal was faxed on

January 12, 2016

. 3

Finding that Claimant did not present any evidence to establish

extenuating circumstances involved in the late f iling of her appeal, the Referee

dismissed Claimant’s appeal as untimely under Section 501(e) of the Law, 43 P.S.

2 During the same hearing, the Referee also heard testimony from Claimant, Jeffrey Esposito, Employer’s General Manager, and Penny Stebbins, Employer’s Finance Manager regarding another Notice of Determination finding Claimant not financially eligible for benefits

based on her application filed in November 2015. Claimant timely appealed that Notice of Determination to the Referee (Referee Appeal No. B

- 16

- 09

- C

- 0452) and then to the Board (Board Decision No. B

- 587509)

. However, Claimant did not appeal the Board’s decision to this

Court. As such, a lthough Claimant presents argument regarding this matter in her brief to this

Court

, the matter is not presently before us and we will not address it. However, we note that

wh ere a claimant is ruled both eligible and ineligible for benefits under different sections of the Law, the disqualifying section takes precedence, which would render Claimant’s current appeal

moot.

3 R. Item No. 1

.4

§ 821(e). Claimant appealed to the Board, and the Board affirmed the Referee’s

decision

. This appeal followed

. 4

Claimant contends that her late appeal should be granted because she

“was never informed of her rights and responsibilities in a terminology for the

common people and therefore [sic] was the responsibility of the customer service

representatives to remove those communication barrie rs so there does not exist any

previous bias or unnecessary or intentio nal confusion which did result. . . . ”

(Claimant’s Brief at 2.) 5

A nunc pro tunc appeal may be granted in extraordinary

circumstances involving fraud, administrative breakdown or non

- negligent conduct

either by a third party or by a claimant. Mountain Home Beagle Media v.

Unemployment Compensation Board of Review , 955 A.2d 484, 487 (Pa. Cmwlth.

2008). There is no evidence in the record that the wording of the Notice of

Deter mination was misleading to the extent that a reasonable person could not

ascertain the date by which to timely appeal. Although Claimant testified that she

appealed the determination before it was mailed on September 24, 2015, the

Service Center’s c laim r ecord sh ows that the determination was mailed on

September 24 , 2015, and that Claimant called on September 28 , 2015, when she

was advised that she could file an appeal. Claimant also acknowledged speaking

4 Our scope of review of the Board ’ s de cision is limited to determining whether an error of law was committed, whether constitutional rights were violated, or whether the necessary findings of fact are supported by substantial evidence. Rock v. Unemployment Compensation Board of Review , 6 A.3d 646, 648 n.5 (Pa. Cmwlth. 2010).

5 Claimant ’s brief also addresses the merits of the appeal

, which we need not address.5

to a Service Center representative several days before her appeal needed to be

filed, during which time she could have clarified any confusing information.

Accordingly, because Claimant has not made out the burden of

justifying a nunc pro tunc appeal, the Board properly denied a nunc pro tunc

appeal, and the Bo ard’s order dismissing Claimant’s appeal as untimely is

affirmed.

____________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Juermal O. Evans, :

Petitioner :

:

v. : No. 739 C.D. 201 6

: Unemployment Compensation : Board of Review, :

Respondent :

O R D E R

AND NOW, this 19 th day of January

, 201 7 , the order of the

Unemployment Compensation Board of Review dated March 21 , 201 6 , at No. B

587510

, is affirmed.

________ ____________________________ DAN PELLEGRINI, Senior Judge