IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson , :

Petitioner :

: v. : : Unemployment Compensation : Board of Review, : No. 1220 C.D. 2017

Respondent : Submitted: February 2 3 , 2018

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON , Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILE D : April 6, 2018

Catherine Johnson (Claimant) petitions for review of the August 14, 2017 order of the Unemployment Compensation Board of Review (Board) affirming the decision of the referee, which dismissed Claimant’s appeal as untimely. We
affirm.
C laimant had been receiving unemployment compensation (UC)
benefits since approximately early April 2017. See Certified Record (C.R.) Item No.
1 . On May 23, 2017, the Erie U C Service Center (Department ) issued two Notices
of Determination. The first determination found Claimant was not in eligible for benefits under Section 402(b) of the U C Law 1 (Law), but was ineligible for benefits

1 Section 402(b) of the Unemployment Compensation Law (Law) provides that a claimant sha ll be ineligible for benefits for any week in which her unemployment is due to voluntarily2

under Section 401(d)(1) of the Law 2 because Claimant was not able and available
for work. Board’s Findings of Fact (F.F.) No. 1, C.R. Item No. 5. Accordingly, the Department determined that Clai mant was ineligib le for benefits. C.R. Item No. 5. The second determination imposed a fault overpayment in the amount of $2,155. 00 pursuant to Section 804(a) of the Law, 3 because Claimant was determined to be ineligible for benefits due to not being able and available for work and was receiving benefits for which she was not eligible. Id

. ; see F.F. No. 1. Both Notices of
Determin ation stated that the final day to timely appeal the determinations was June 7, 2017. F.F. No. 6, C.R. Item No. 5.

On June 8, 2017, Claimant filed her appeal. F.F. No. 8; see C.R. Item No. 6. Subseq u ently, a referee held a hearing at which Claimant , her daughter, a witness for Delaware Valley Comfort at Home LLC (Em p loyer), and Employer’s tax representative appeared and testified. See C.R. Item No. 9. After the hearing,

t he referee issued a decision dismissing Claimant’s appeal as untimely

. C.R. Item No. 10. Claimant appealed to the Board, which affirmed. C.R. Item No. 12, Board’s
D ecision at 3. Claimant now petitions this Court for review of the Board’s order. 4

leaving work w ithout cause of a necessitous and compelling nature

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

.

2 Section 401(d) (1) of the Law provides that a c laimant must be able and available for suitable work in order to qualify for unemployment compensation benefits. Section 401(d)(1) of the Law, 43 P.S. § 80 1(d)(1).

3 Section 804(a) of the Law provides that any person who by reason of her fault has received unemployment compensation to which she was not entitled shall be liable to repay the Unemployment Compensation Fund. Section 804(a) of the Law, 43 P.S. § 874(a).

4 Our review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704

.3 Before this Court, Claimant first argues that the Board’s findings are

unsu pported by the record , and thus , its decision is wrong. Claimant contends that she offered evidence to establish an administrative breakdown entitling her to file her appeal late. In particular, Claimant refers to a telephone conversation with an
UC repr esentative in which Claimant asserts she was led to believe the issue

reg arding her availabi lity for work w as resolved. Claimant points out that the Board found that during the call, Claimant told the Department that she made an error in filing and was ab le and available for work. She further states the Board erroneously
found that this conversation took place on May 25, 2017, when it actually took place on May 23, 2017 , and that such misstatement indicates the Board’s lack of
consideration of the reasona bleness of Claimant’s conduct

.

Claimant also argues that she is entitled to file her appeal late because
her untimely appeal w as due to non

- negligent circumstances. Specifically, Claimant states that she was not living full

- time at her residence bec ause she broke her wrist and needed to stay elsewhere with family for assistance. Claimant states she periodically returned to her home to check mail. Once Claimant was aware of the determinations, she immediately filed an appeal.

Section 501(e) of the Law provides, among other things, that unless a
claimant files an appeal from a determination within 15 calendar days after such
notice was mailed to her last known post office address , such determination shall be final. 43 P.S. § 82 1(e). The provisions of the Law regarding the time to file an appeal are mandatory. U nited States Postal Service v. Unemployment Comp. Bd. of
Review , 620 A.2d 572 (Pa. Cmwlth. 1993). The referee and the Board lack jurisdiction to consider an untimely ap peal. See Edwards v. Unemployment Comp. Bd. of Review , 639 A.2d 1279, 1282 (Pa. Cmwlth. 1994). Therefore, the “failure to4

file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.” U nited State s Postal Service , 62 0 A.2d at 573. However, a n untimely appeal may be allowed upon a showing of fraud or breakdown in the administrative process , or where the untimeliness is not the result of the petitioner’s negligence. Id . at 573

- 74. A breakdown in t he administrative process

occurs “where an administrative board or body is negligent, acts improperly or unintentionally misleads a party.” Hessou v. Unemployment Comp. Bd. of Review , 942 A.2d 194, 198 (Pa. Cmwlth. 2008) (citing Union Electric Corp. v. Bd

. of Prop. Assessment, Appeals & Review of Allegheny C ty. , 746 A.2d 581, 584 (Pa. 2000))

. “[T]he claimant bears a heavy burden to justify an untimely appeal.” Roman

Hutchinson v. Unemployment Comp. Bd. of Review , 972 A.2d 1286, 1288 n.1 (Pa.
Cmwlth. 2009 ).

With respect to Claimant’s argument that there was an administrative breakdown in regard to her telephone conversation with a UC representative, Claimant’s argument is without merit. Claimant insists that her telephone conversation with the UC representative took place on May 23, 2017, which
Claimant maintains was two days before the Department issued the Notices of
Determination , as she contends they were issued on May 25, 2017. However,
Claimant is mistaken about the facts . Additionally, the evidence , including Claimant’s own evidence, does not support her assertion s

. The Department’s Notices of Determination were issued on May 23, 2017, not May 25, 2017. See F.F. No. 1, C.R. Item No. 5. The Department’s claim reco rd shows that Claimant spoke with the Department on “170525” or May 25, 2017. C.R. Item No. 1. Additionally, Claimant’s petition for appeal from the Department’s determinations states the date of the determinations being appealed is “5/23/2017” and furth er states, “[m]y appeal5

is 1

- day late because on 5/25/2017, I called a PA Unemployment rep at 2:45 pm and by our conversation I believed I had completed an appeal.” C.R. Item No. 6, Ex

. 6. At the hearing, the referee asked Claimant when she spoke to a De partment representative, and Claimant responded the 25 th of May. 5 C.R. Item No. 9, 7/3/17 Transcript of Testimony (T.T.) at 10. Thus, the Board’s finding that Claimant did not contact the Department until May 25, 2017, which was two days after the
Notice s of Determination were mailed, is supported by substantial evidence

. 6

Notwithstanding when the call occur red, Claimant argues that following the conversation, she believed the issue regarding her availability for work had been resolved. However, the B oard found that, during the May 25, 2017 call, the Department told Claimant to file her bi

- weekly claims and that a determination was forthcoming. F.F. No. 2. This finding is supported by the entry in the Department’s claim record. See C.R. Item No. 1. Further, the Board found that there was no evidence that Claimant was misinformed or misled by UC authorities regarding her right or necessity to appeal. F.F. No. 9. Indeed, as the Board noted,
the Notices of D etermination did not indicate that an appe al could be filed over the phone. Board’s 8/14/17 Decision at 2 ; see C.R. Item No. 5 . Thus, the Board did not find Claimant’s belief that she resolved the availability issue during her conversation
to be reasonable. Id . Further, the Board found that th ere was no credible evidence in the record that Claimant was told that she did not need to file an appeal. Id

. Based on the Board’s findings, there is nothing to support a determination that the

5 Claimant initially stated the 27 th but then stated the 25 th of May. C.R. Item No. 9, 7/3/17 Transcript of Testimony (T.T.) at 10

.

6 It is well

- settled that the Board is the ultimate arbiter of credibility in UC cases. Waverly Heights, Ltd. v. Unemployment Comp

. Bd

. of Review , 173 A.3d 1224, 1227 (Pa. Cmwlth. 2017). We are bound by the Board’s findings so long as there is substantial evidence in the record, taken as a whole, supporting those findings. Id . at 1228.6

Department was negligent, acted improperly or unintentional ly misled Claimant
such that we could conclude that there was a breakdown in the administrative

process. Claimant’s subjective belief that her claim was resolved does not constitute a breakdown in the administrative process justifying a late appeal. See Constantini v. Unemployment Comp. Bd. of Review , 173 A.3d 838, 845

- 46 (Pa. Cmwlth. 2017) (holding that a claimant’s misunderstanding of a Department representative’s statement concerning when claimant had to file an appeal, along with her failure to
read t he notice given her misunderstanding, did not constitute an administrative breakdown that would warrant the filing of a late appeal). 7

Next, we address Claimant’s argument that she should be permitted to file a late appeal because her conduct was non

- ne gligent given that she could not stay at her home and had to reside with her family for medical reasons . This argument also lacks merit.

The Board found that, during the May 25, 2017 call, the Department
told Claimant to file her bi

- weekly claims and that a determination was forthcoming

. F.F. No. 2. Further, the Board found, and Claimant does not dispute, that the
determinations were mailed t o her last known post office address. F.F. No. 3. As the Board stated, it was Claimant’s responsibility to collect her mail in a timely

manner , even if she was living elsewhere. Claimant’s failure to collect her mail,

7 Claimant also argues that there was an administrative brea kdown because she received questionnaires , which sought clarification on her availability for work and which l ist ed two different due dates, May 19, 2017 and May 22, 2017 , for a response . Claimant apparently is refer ri ng to the Advance Notices and Claiman t Cover Letter and Questionnaire, which she a ttached to her brief as e xhibits. To the extent Claimant included documents that are not part of the certified record before this Court, we may not consider them. More importantly, however, these documents and their due dates are irrelevant to the issue before us. The issue before us is whether Claimant established grounds to file an untimely appeal from the Notices of Determination.7

even though she was told a determin ation was forthcoming, and/or failure to notice the appeal deadline date results from circumstances within Claimant’s own control
and , therefore, her own negligence. 8 See Ho v. Unemployment Com p. Bd

. of Review , 525 A.2d 874 (Pa. Cmwlth. 1987) (finding an appeal untimely where a claimant , who had to leave the country to attend to her sick mother in Malaysia eight days
before the D epartment made its determination , was made aware that she had
received a letter but failed to take measures to ascertain t he cont ents of the letter resulting in her late filing). Thus, Claimant failed to establish that her conduct was

non

- negligent such that she would be entitled to file a late appeal.

Because Claimant failed to establish that her untimely appeal was caused by eit her fraud, a breakdown in the administrative process , or was the result
of her non

- negligen t conduct , the Board did not err in affirming the referee’s decision dismissing Claimant’s appeal as untimely. See U nited States Postal
Service

. Accordingly, we af firm. 9

__________________________________ CHRISTINE F IZZANO CANNON, Judge

8 Both C laimant’s testimony and her daughter’s testimony indicate that Claimant simply may not have timely noticed the appeal deadline. When the referee asked Claimant if she noticed the last da y to appeal on the determination, Claimant responded, “I did not really see it on time.” N.T. at 10. Additionally, her daught er testified that although she could not say when her mother saw the mail or the date on it, as soon as she saw the paperwork, she helped her mother file the appeal. N.T. at 16.

9 Because of our disposition, we need not address Claimant’s arguments conce rning whether she was able and available for work.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Catherine Johnson, :

Petitioner :

: v. : : Unemployment Compensation : Board of Review, : No. 1220 C.D. 2017

Respondent :

O R D E R

AND NOW, this 6 th day of April , 201 8 , the order of the Unemployment Compensation Board of Review dated August 14, 2017 is AFFIRMED

.

__________________________________ CHRISTINE FIZZANO CANNON, Judge